RAMDEO RAI Vs. MAHABIR RAI

JUDGEMENT

(1.) THERE was a proceeding under Section 145 of the Code of Criminal Procedure before a Magistrate of Khagaria in respect of certain lands in which the petitioner was the first party and the members of the opposite party were the second party. The proceeding was decided in favour of the petitioner on the 9th October, 1963. Thereafter, on the 4th November, 1963, the opposite party filed Criminal Revision No. 91 of 1963 in the Court of the District Magistrate of Monghyr, against the aforesaid order of the Magistrate, dated the 9th October 1963. In view of the contentions raised in the present application, it is not necessary for me to state the details of the dispute between the parties. Suffice it to say here that the petitioner called for a mutation application from the ex -landlord, Nawab Waheb Khan, which purported to have been filed in 1931 and which is alleged to contain the signature of Mahabir Rai, opposite party 1. In support of his claim, the opposite party contended that the signature of Mahabir in the mutation application was a forged one and it should be sent to the expert. However, the parties did not take proper steps in time for sending the document to the expert. The Magistrate delivered judgement in due course and decided the case in favour of the petitioner as stated above. It is submitted by the petitioner here that the Magistrate did not rely on that petition in his judgement. It is not necessary for me to examine this fast. The revision application was transferred by the District Magistrate to the file of the Additional District Magistrate for disposal.

(2.) MR . Nageshwar Prasad, learned counsel for the petitioner has contended before me that the Additional District Magistrate has no power under Section 435 of the Criminal Procedure Code to take additional evidence. According to him, the learned Additional District Magistrate was not sitting in appeal against the order passed in a proceeding under Section 145 of the Criminal Procedure Code He has referred to Section 428 of the Criminal Procedure Code which provides that the appellate Court in dealing with any appeal has got power to take additional evidence if it thinks necessary. In his submission, there is no provision in the Code of Criminal Procedure for taking additional evidence by a revisional Court while exercising its powers under Section 435 of the Code. The powers of the District Magistrate while sitting in revision are circumscribed.

(3.) LEARNED counsel for the petitioner submitted that the Additional District Magistrate had no power to start a proceeding under Section 476 of the Criminal Procedure Code either suo motu or on the application by the opposite party. The power of filing a complaint is given to the court before which the offence referred to in Section 195(1)(b) or (c) of the Criminal Procedure Code appears to have been committed in relation to a proceeding pending before it. The court may, after it is satisfied after a preliminary inquiry that there is a prima facie case against the persons, it may file a complaint in writing signed by the presiding officer of the court to a first class Magistrate, who has got powers to take cognisance of the case. Section 476 -A empowers the superior court also to file such a complaint if it finds that the offence as referred to above has been committed before a subordinate court where the latter had neither made a complaint under Section 476 in respect of such offence or rejected an application for the making of such a complaint. For the purpose of determining as to whether the first class Magistrate, who decided the proceeding under Section 145 is subordinate to the District Magistrate, the question will, have to be decided with reference to Section 195 Sub -Section (3) of the Code, which reads as follows : -