CHERANJILAL Vs. JABAR CHAND

JUDGEMENT

(1.) THIS is a reference by the District Magistrate of Shivpuri seeking orders of this Court with regard to the disposal of an application under Section 520, Code of Criminal Procedure pending before the District Magistrate. The facts are that the non -applicant Jabar Chand was tried by the Sub -Divisional Magistrate of Shivpuri for an offence of theft of ten bags of Jeera. The learned Sub -Divisional Magistrate while acquitting Jabar Chand ordered the confiscation to the State of the property. The complainant Chiranji Lal then filed a revision petition under Section 520, Code of Criminal Procedure, before the District Magistrate for the delivery of the bags of Jeera to him. While this revision petition was pending before the District Magistrate, Jabar Chand presented a petition under Section 520 of the Code to the Sessions Judge of Gwalior for the return of the property to him. The learned Sessions Judge after hearing Jabar Chand and the Public Prosecutor allowed the petition and passed an order directing the return of the bags of Jeera to Jabar Chand or in the alternative the payment to him of the proceeds of the sale if the property had already been sold. The District Magistrate now wants to know the effect the order of the Sessions Judge has on the application under Section 520 of the Code pending before the District Magistrate.

(2.) MR . Mungre on behalf of the State contends that in view of the provisions of Section 435(4), the learned Sessions Judge having entertained and decided the application presented to him by Jabar Chand, the District Magistrate has now no jurisdiction to deal with the application filed before him by the complainant Chiranjilal, Mr. Bhagwandas Gupta, learned Counsel for Chiranjilal, on the other hand, contended that under Section 407(1) an appeal lies to the District Magistrate from a sentence passed by Second Class Magistrate and that therefore in the present case the District Magistrate's Court being the "Court of Appeal" for the purposes of Section 520 of the Code, he alone had the power to modify, alter or annul the order passed by the Sub -Divisional Magistrate of the Second Class under Section 517 of the Code with regard to the confiscation of the Jeera to the State.

(3.) ON the view I have taken of Section 520 it is clear that in the present case, both the Sessions Judge and the District Magistrate as a Court of revision had power under Section 520 to interfere with the orders of the trial Court under Section 517 with regard to the confiscation of the Jeera. The question, then, arises whether the learned Sessions Judge was Justified in entertaining an application under Section 520 of the Code by the accused, when the complainant had already sought redress under that section from the District Magistrate. I do not think that in the face of the clear provisions of Clause (4) of Section 435, there can be any doubt on the point. Under Section 435, an applicant may go for redress either to the District Magistrate or to the Sessions Judge, but under Clause (4) of the section when an application has been made either to the Sessions Judge or to the District Magistrate, no further application can be entertained by the other of them. It must, however, be noted that on general principle, the Jurisdiction of one of the Courts of concurrent Jurisdiction to deal with the matter exists so long as the other Court of co -ordinate power has not actually exercised jurisdiction in the matter and dealt with it. Therefore, the jurisdiction of the Sessions Judge to deal with an application under Section 520 is not taken away by the mere fact of the earlier presentation of a petition under Section 520 of the Code to the District Magistrate. It is only when an application is entertained and decided either by the District Magistrate or the Sessions Judge that the jurisdiction of the other of them to deal with the matter is lost. This view is supported by the decision of the Madras High Court in 'Appachi Goundan v. Emperor : AIR 1931 Mad 772 (2) (D). I am, therefore, inclined to think that the learned District Magistrate can now only reject the petition filed before him by the complainant. The question whether the order passed by the Sessions Judge is correct on merits does not arise for consideration in this reference. If the complainant and the State are in any way aggrieved by that order, they are at liberty to move this Court by way, of appropriate proceedings.