MUSAMMAT HAR PIARI Vs. NATHE LAL

JUDGEMENT

(1.) This is an application to revise an order under Section 145 of the Code of Criminal Procedure. A preliminary objection has been taken by the learned Government Advocate that no application in revision lies having regard to the express provision of Section 435, Clause (3) of the Code of Criminal Procedure. If the matter had not been covered by authority, I would have had some difficulty in entertaining this application in revision, because, if the High Court cannot even send for the record of proceedings under Chapter XII of the Code of Criminal Procedure, I cannot understand on what principle it can interfere with those orders when the record has once some before it on, as I might say, an order passed for sending for the record under Section 435 of the Criminal Procedure Code which was not warranted by law. However, leaving this aspect of the question aside, it has been held in a large number of cases that this Court can interfere if there has been not a proceeding either in fact or in law as contemplated by Section 145 of the Criminal Procedure Code.

(2.) I shall now briefly refer to some of the reported cases of this Court.

(3.) In the case of Brahma Nath v. Sundar Nath 51 Ind. Cas. 170 : 17 A.L.J. 434 at p. 442 : 20 Cr. L.J. 410 Mr. Justice Knox observed as follows: "It has been held over and over again by this Court, for example, in Jhingai Singh v. Ram Pratap 1 Ind. Cas. 762 : 31 A. 150 : 9 Cr. L.J. 382 : 6 A.L.J. 113 that proceedings under Section 145 must be in intention, in form, and in fact, proceedings under Chapter XII of the Code of Criminal Procedure by a Magistrate duly empowered to not under that Chapter. The same has been held by a Divisional Bench of this Court in Syeda Khatun v. Lal Singh 25 Ind. Cas. 324 : 36 A. 233 : 12 A.L.J. 344 : 15 Cr. L.J. 572."