RAM YA GYA Vs. STATE

JUDGEMENT

(1.) THIS is an appli cation under Section 482 of the Code of Criminal Procedure praying that the orders dated November 24, 1980 and December 9, 1980 passed by the Sub-Divisional Magis trate basti and the Sessions Judge, Basti res pectively be quashed and the Magistrate concerned may be directed to decide the proceedings in accordance with law. I have heard the learned counsel for the parties. The short facts leading to this application are that proceedings under Sec tion 145 Cr. P. C. were commenced at the instance of the applicant and a preliminary order was duly passed. Thereafter the case proceeded and on one date, namely, Novem ber 24, 1980 the petitioner was absent, the opposite party was present, hence the learn ed Sub-Divisional Magistrate dismissed the application under Section 145 Cr. P. C. in default. The petitioner preferred a revision against the same, which was dismissed by the learned Sessions Judge on December 9, 1980 and he held that the revision was not competent. It is these orders by which the petitioner has felt aggrieved and has taken recourse to the provisions of Section 482 Cr. P. C. The question canvassed before me is as to whether a revision lay against an order dismissing the petitioner's application under Section 145 Cr. P. C. It is the case of the parties that second revision is clearly pro hibited under Section 397 (3) of the Code of Criminal Procedure. If the order passed by the Sessions Judge was erroneous the only remedy open to the petitioner for cor rection of the order was by invoking the in herent jurisdiction of this Court under Sec tion 482 Cr. P C. but the basic question is as to whether a Criminal revision lay to the Sessions Judge against an order of the Ma gistrate dismissing the proceedings in de fault. A revision can be filed under Section 397 of the present Code of Criminal Proce dure, which reads: "397. (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any find ing, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct the execu tion of any sentence or order be suspend ed, and if the accused is in confinement, that he be released on bail or on his own bond pending for examination of the re cord. Explanation-All Magistrates, whe ther Executive or Judicial, and whether exercising original or appellate jurisdic tion, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398. (2) The powers of revision confer red by sub-section (1) shall not be exer cised in relation to any interlocutory or der passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this sec tion has been made by any person either the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of the them. " It is the jurisdiction of the High Court by exercising its powers of revision to call for and examine the record of any proceed ing of any inferior Criminal Court for the purposes of satisfying itself as to the correct ness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court. The ambit of the po wer is very wide inasmuch as the legality propriety, irregularity of the proceedings and, of course, jurisdictional errors etc. are all embraced in the revisional jurisdiction of the High Court. It cannot be seriously contended that the case pending before the learned Sub-Divisional Magistrate commenc ed on an application filed by the petitioner under Section 145 Cr. P. C. was not a pro ceeding. If while dealing with such pro ceedings any irregularity, illegality of error is committed by the subordinate Criminal Court, which merits interference by the Court in revision in the exercise of its supe rior powers, surely a revision for the pur pose of obtaining such relief would be com petent. The jurisdiction of the Sessions Judge was invoiced by the revision for the purpose of examining the validity of the or der of the Magistrate dismissing Section 145 Cr. P. C. proceedings in default. Therefore, in my opinion the order of the learned Ses sions Judge dismissing the petitioner's revi sion as not maintainable was patently erroneous and must be set aside. After quashing that order normally this Court would have remanded the case to the revisional Court for disposing of the revision in the light of the order passed by this Court but on the facts of the instant case I think it would not be expedient in the ends of justice that any further delay be suffered to take place in the final disposal of a case under Section 145 Cr. P. C. Hence, I refrain from following the routine procedure of remanding the case to the revisional court. If on merits I find that the impugn ed order passed by the Sub-Divisional Ma gistrate was contrary to law, it would be just and proper that this Court shall in the exer cise of its jurisdiction under Section 482 Cr. P. C. quash that order also and then di rect the Magistrate to proceed in accordance with law. I am unable to endorse the order of the Magistrate; dismissing the proceedings under Section 145 Cr. P. C. for default on account of the absence of the petitioner. There are proceedings which may be purely in the nature of a personal dispute between the parties to a case. On the other hand, there may be another category of cases in which incidentally what may be a dispute between the parties naturally trigger off a much larger issue. The prime motive for permitting legal proceedings under Section 145 Cr. P C is prevention of breach of peace an objective predominantly connected with public interest. THIS changes the en tire complexion of such proceedings which are not in the nature of a personal feud be tween two persons or sets of persons. It gives them a larger canvas as the danger to public peace and tranquillity is to be effec tively prevented. THIS is what places the proceedings under Section 145 Cr. P. C. on an entirely different footing. In such cases mere negligence or want of sufficient care and diligence of the prosecution depending on the personal conduct of a party loses importance and has to be subordinated to the larger interest of the public by enjoining a final termination of the proceedings only after adjudication of the case on merits, THIS seems to have influenced the long string of decisions which have countenanced the view that the proceedings under S. 145 Cr. P. C. cannot be dismissed in default. The Magistrate acquires jurisdiction to com mence such proceedings by passing a "preli minary order". Having once formed the opinion that an apprehension of breach of peace existed, so long as an order under sub-clause (5) of Section 145 Cr. P. C. is not made, the Magistrate's duty is not to terminate the proceedings but to proceed farther under sub- section (4) of Section 145 Cr. P. C. THIS provision imposes a very important duty on the Magistrate to continue such proceedings until he decides which of the parties was in possession on the date of the preliminary order or until it is shown under sub-section (5) that 'no such dispute exists or 'has existed'. The preli minary order can be cancelled only under one circumstance, namely, that the parties required by the Magistrate to appear in pro ceedings satisfy him that no dispute threat ening public peace existed. It follows that it is wrong on the part of the Magistrate to treat the informant as complainant and dismiss the proceedings on the date on which he failed 10 attend the Court. (See Bhavrag Ganpat Rao v. Bhimrao Tukramji and others A. I. R. 1958 Bora, 450. Therefore, in my opinion, the order passed by the Magistrate was clearly erroneous. In the result this petition is allowed, the impugned orders are set aside and the case is sent back to the Court of the Magis trate concerned with the direction that he would continue the proceedings in the- case under Section 145 Cr. P. C. from the state at which it was dismissed in default and conclude them in accordance with law. .