BHARAT PATI Vs. BRUNDABAN PANDA

JUDGEMENT

(1.) THIS is a revision against the appellate judgment of the Sessions Judge of Berhampur, against the order of a Magistrate First Class of Berhampur, under Section 476 Code of Criminal Procedure declining to file a complaint for the prosecution of the opposite party for the offence of forgery.

(2.) THERE was a proceeding under Section 145, Code of Criminal Procedure against the opposite party and some other persons M.C. 789 of 1960 fin the Court of the Sub -divisional Magistrate, Berhampur. The proceedings terminated in favour of the Petitioner and the learned Magistrate held that a particular document filed by the opposite party was forged. Hence, on 13 -9 -1961 he directed that separate proceedings under Section 746 Code of Criminal Procedure should be initiated against the opposite party for using a false document. The proceedings were contained by his successor in office, namely Shri B.N. Parija who by his order dated 30 -1 -1962 dropped the proceeding. It should be mentioned here that the scheme of separation of the Judiciary from the Executive was introduced on Ganjam district sometime in October 1961, but this did not affect the jurisdiction of the executive magistrates to continue to hear cases under the preventive sections in Part IV of the Code of Criminal Procedure, or other ancillary proceedings such as proceedings under Section 476 Code of Criminal Procedure arising out of the same. Hence Shri Parija, though an Executive Magistrate, continued the proceeding under Section 476 Code of Criminal Procedure and passed -the aforesaid order.

(3.) HERE the learned Sessions Judge has committed a serious error. The scheme of separation of the Judiciary from the Executive does not in any way affect the judicial powers of the Sessions Judge under the Code of Criminal Procedure which have been kept intact. His Court is superior to that of all Magistrates whether executive or judicial both for the purpose of exercising revisional jurisdiction and also for the exercise of appellate powers where appeals have been provided against orders of Magistrates. It is true that trial of cases has been transferred to the Judicial Magistrates and the Sessions Judge is their appellate authority subject to the provisions of Chapter XXXI of the Code of Criminal Procedure. It is also tape that under the allocation of functions between the Executive and the Judiciary the jurisdiction of the Executive Magistrates is limited to those provisions of the Code dealing with prevention of offences mentioned in Chapters VIII, IX, X, XI and XII of the Code. The learned Sessions Judge however is not right in saying that no appeal is provided against the orders passed by Executive Magistrates, while exercising powers under those chapters. An order passed by an Executive Magistrate in a proceeding under Section 107, 109 or 110; Code of Criminal Procedure is appealable to the Court of Session under Section 406 and Section 406 -A Code of Criminal Procedure. Hence, by virtue of Sub -section (3) of Section 195 Code of Criminal Procedure even Executive Magistrates are deemed to be subordinate to the Court of Session. An appeal will therefore (sic) under Section 476 -B. Code of Criminal Procedure to the Court of Session, against an order passed by an executive magistrate under Section 476 Code of Criminal Procedure.