SHIV NARAIN PANDEY Vs. VINDHYACHAL PANDEY

JUDGEMENT

(1.) Being of the opinion that there - was a dispute in respect of bamboo clumps situate in village Kathar Pandey. Police Station Nagar Purab district Hasti, and the same was likely to cause breach of the peace the Sub Divisional Magistrate of the area passed an order on 26.8.1981 initiating proceedings under section 145 of the Code of Criminal Procedure (herein after referred to as the Code). The parties entered appearance filed written statements and adduced evidence in respect of their - respective versions; each claimed that the subject of dispute was in his possession on the material date, i.e. the date of the passing of the preliminary order referred to above. A local inspection was also made in the case by the Magistrate seized of the matter. After an evaluation of the material on the record an order was passed on 26th September 1983 in favour of the opposite party holding that he was in possession of the disputed bamboo clumps on the relevant date. The applicant was, therefore directed not to cause interference with the possession of the opposite party till he obtained an order from a competent court. The applicant assailed that order by means of a revision, but was unsuccessful. The revisional court has also been of the opinion that the subject of dispute was in possession of the opposite party. This order was passed on 24th November 1983.

(2.) This petition has been moved under section 482, of the Code of Criminal Procedure praying that the entire, proceedings and the orders referred to above be quashed.

(3.) I have heard the learned counsel for the parties and have carefully considered the points canvassed before me. It transpires that the preliminary order was passed by the Sub-Divisional Magistrate later on, the case was transferred to the court of the Additional Sub-Divisional Magistrate of the same area by an order passed by the District Magistrate Basti The Additional Sub Divisional Magistrate proceeded to dispose of the proceedings by passing final order in the case. The learned counsel for the applicant contends that the District Magistrate had no jurisdiction to transfer the case to the Additional Sub Divisional Magistrate and, therefore, the order dated the of September, 1983 passed by the Additional Sub-Divisional Magistrate is beyond jurisdiction. Ins support of his contention he has cited a Division Bench decision of this Court in Laxmi and others v. State. I have gone through the facts of that case, which are clearly distinguishable. In that case the Magistrate, who had passed the preliminary order initiating proceedings under section 145, of the Code and also the final order in the proceedings, was neither a Sub Divisional Magistrate nor a Magistrate, on whom powers of first class Magistrate had been conferred. It was in that background held that the Magistrate not being either a Sub Divisional Magistrate or a Magistrate First Class could not exercise jurisdiction under section 145 in the Code of Criminal Procedure. This is also noteworthy that the provisions of the old Code of Criminal Procedure were considered in that case. The words Sub Divisional MagistrateT or a Magistrate First. Class no not- exist now in section 145 of the new Code. Now an Executive Magistrate withinT whose local Jurisdiction, the dispute arises and the same is likely to cause breach of the peace, can initiate proceedings under section 145 of the code. In the instant case, the proceedings were initiated by a competent Executive Magistrate and were later on transferred by the District Magistrate to an Additional Sub-Divisional Magistrate of the same area. In Krishna Prasads case2 it was held by this Court that the District Magistrate has powers to transfer a case from the court of one Executive Magistrate to that of another. The principle of law enunciated therein can be safely applied to the facts of the instant case. Moreover, it can be reasonably inferred that an Executive Magistrate is required to work as an Additional Executive Magistrate in a particular area in view of the workload of that area. The District Magistrate has power to control the business and working of the Magistrate and in view of the provisions of Section 23 (2) of the Code, he is empowered to distribute business among the Executive Magistrates. For the sake of convenience and facility of litigants, business of one court is transferred to another by the competent authority and, as pointed out above, the Magistrate is empowered to no it. There is, thus, no force in this contention.