TARA SINGH Vs. MAHESHWARI DATT

JUDGEMENT

(1.) This is a reference made by the 1st Additional Sessions Judge of Kumaun. It arises out of proceedings Under Sec. 145 Code of Criminal Procedure. Plot No. 63/4 is situate in village Nayagaon Chandan Singh, Pargana Bhaber Kota, Tahsil Kaldhungi, Police Station Ramnagar. The Station Officer Ramnagar reported that there was an apprehension of breach of peace in respect of this plot. On 14 -9 -1970 a preliminary order was passed by the Magistrate calling upon the parties to file their written statements and documents in support thereof. On 13 -1 -1971 the SDM Bhabar passed an order directing Maheshwari Datt to be put in possession of the plots in question and he restrained Sri Tara Singh from interfering with his possession unless evicted therefrom in due course of law. Tara Singh filed a revision before the First Additional Sessions Judge of Kumaun, who has made a reference for quashing the order of Sri R.S. Dohre, SDM, Bhabar.

(2.) I have heard counsel for the parties and have also perused the record. I am inclined to accept this reference. The undisputed facts are that village Nayagaon Chandan Singh Pargana Bhabar Kota is situate in Police Station Ram Nagar. The contention of the revisionist is that Police Station Ram Nagar falls under the jurisdiction of SDM, Kashipur. On the other hand, the opposite party contended that the SDM, Bhabar was authorised to exercise jurisdiction over Police Station Ram Nagar. Reference has been made to an order dated 2 -4 -1971 passed by Sri B.K. Goswami, Deputy Commissioner Naini Tal regarding distribution of work amongst the officers of the district of Naini Tal. It appears from the aforesaid order that Sri R.S. Dohre the present SDM, Bhabar was designated as SDM -cum -SDO, Bhabar consisting of Haldwani Tahsil and Peshkari Kaladhungi. The submission is that in view of the order of the Deputy Commissioner Sri R.S. Dohre was entitled to take cognizance of the present proceedings Under Sec. 145 Code of Criminal Procedure. This argument, in my opinion, is untenable for two reasons. In the first place, the order authorising Sri R.S. Dohre, Sub -Divisional Magistrate, Bhabar to exercise jurisdiction over the area in question was dated 2 -4 -1971, while the impugned order passed by Sri R.S. Dohre was dated 13 -1 -1971. It is thus obvious that on the date when he passed the impugned order he had no jurisdiction over the area which is covered by the present proceedings Under Sec. 145 Code of Criminal Procedure. It may also be mentioned in this connection that Under Sec. 8 of the Code of Criminal Procedure the State Government has been given the power to divide districts into sub -divisions. Such power cannot be exercised by the District Magistrate. Sec. 8 Code of Criminal Procedure runs as follows:

(3.) Counsel for the revisionist has urged that as the disputed plot did not lie within the territorial jurisdiction of the SDM the order passed by him is void and must be quashed. He has placed reliance upon Sec. 145(1) read with Sec. 530(j) of the Code of Criminal Procedure and has also cited a Single Judge decision of this Court reported in Kapil Deo Singh v/s. State, 1966 AWR 548. Counsel for the opposite party has contended that the impugned order should not be set aside merely on the ground that the present proceedings Under Sec. 145 Code of Criminal Procedure in the course of which the impugned order was passed took place in a wrong sub -division or local area. He has relied upon Sec. 531 Code of Criminal Procedure read with Sec. 537 Code of Criminal Procedure. He submits that unless the revisionist can show that the error has in fact occasioned a failure of justice no interference is called for. He has relied upon a decision of the Supreme Court reported in Purushottamdas Dalmia v/s. State of West Bengal, 1961 AWR 665 SC. I shall now deal with this aspect of the matter.