RAM NATH Vs. STATE OF U P

JUDGEMENT

(1.) THIS petition under Section 482 CrPC has been moved against an order of the learned Sessions Judge, Jaunpur arising out of a case under Section 145 CrPC which started in the year, 1963. The Magistrate decided that the property should be released in favour of Phirai, opposite party No. 2. Against this order, a revision was filed but it was dismissed by the Sessions Judge. A second revision was filed in this Court and it was allowed. The orders passed by the Magistrate and the Sessions Judge, were set aside, and the case was sent back to the Magistrate with certain directions. It appears that the Deputy Director of Consolidation had decided in consolidation proceedings that Phirai was Sirdar of this land. On the basis of this decision, it was argued before the Magistrate, that the property should be released in his favour. On the other hand, the other party alleged that because the appeal against the order of the Deputy Director of Consolidation was pending in the High Court, that decision should not be taken into consideration. The High Court had passed an order that in the mean-time, the property shall remain under attachment. The Magistrate, after hearing the parties, held that in view of the order of the High Court and because of the pendency of appeal before the High Court, it would be in the fitness of things that the property should remain attached. The Magistrate ordered that the proceedings shall [remain stayed till the appeal is decided by the High Court. Against this order, Phirai filed a revision before the learned Sessions Judge who allowed the revision and has ordered that the disputed property should be released in favour of Phirai and others. The learned (Sessions Judge further said that Phirai and others shall remain in possession until evicted in due course of law. It is this order which has been challenged under Section 482 CrPC before this Court.

(2.) ON behalf of the petitioner, two points were raised-firstly it was contended that a revision against the order of the Magistrate staying proceedings did not lie and the second point raised was that the Magistrate had no jurisdiction to pass a final order. ON behalf of the opposite parties, it was contended that because a second revision was barred, therefore, the order of the learned Sessions Judge could not be disturbed by this Court by means of an application under Section 482 CrPC. I have considered both the points raised. The scope of Section 482 CrPC came up for consideration before the Supreme Court in the case reported as Madhu Limaye v. State of Maharashtra, 1978 AWC 96. In this case, it has been Lald down that in cases where the criminal proceedings were initiated illegally, vaxatiously or without jurisdiction, the High Court must exercise its inherent jurisdiction. In other words, if an order has been passed illegally and without jurisdiction, it would be desirable that the High Court should exercise the power conferred by Section 482 CrPC. fo my mind, the order of the Magistrate finally deciding the question of possession is patently illegal and without jurisdiction. The Magistrate had simply ordered that the property shall remain attached and further proceedings shall remain stayed. The Magistrate had not decided the question of possession one way or the other. Thus no final order had been passed by the Magistrate in the case under Section 145 CrPC. As a revisional court, it was, no doubt, open to the learned Sessions Judge to consider whether the order staying the proceedings was proper or not but I am sure that he had no jurisdiction to pass a final order himself. It goes without saying that the initial jurisdiction to decide the question of possession vests in the Magistrate and if that question of possession has not been decided by the Magistrate, the revisional court cannot itself assume this jurisdiction and decide the question of possession. To my mind, this was illegal and abuse of process of law. The superior court can sit in judgment over any point decided by the subordinate court but if the subordinate court has not decided that point, the superior court should not usurup that jurisdiction at the revisional stage. I, therefore, think that the order of the Magistrate dated 12-3-1977 should be quashed. In these circumstances, it does not appear necessary to decide the question whether the revision against the order of the Magistrate was maintainable or not.