SHEORANI Vs. BAIJ NATH

JUDGEMENT

(1.) THE proceedings in this case were sent for by the learned Sessions Judge of Cawnpore. It is not very easy to understand how the learned Sessions Judge sent for these proceedings. Possibly his attention was never called to Maharaj Tewari v. Har Charan Rai 26 A. 144 : 1 Cr. L.J. 339. Any how he did send for them, and several hours have been spent in this Court in trying to show that the Magistrate s order was an order passed without jurisdiction. No attempt has been made to challenge the case as being without jurisdiction up to and inclusive of the order passed on the 30th of September and recorded by the learned Magistrate in English. THE learned Counsel who appeared in support of the learned Judge s order had to admit, and rightly to admit, that up to that point at any rate the proceedings were proceedings under Chapter XII of the Code of Criminal Procedure. THE Magistrate proceeded up to that point with very great care and deliberation. After he had passed his English order, he then passed an order in the vernacular in which he directed either under Section 145 or Section 147 of the Code of Criminal Procedure that an order be embodied in the form under Section 147 of the Code of Criminal Procedure and sent to the Police directing them to deliver possession of the house to the complainant and to instruct the accused not to interfere with the complainant s possession till such time as they obtained a decree from a Court in their favour. THE learned Magistrate justifies his order, which for brevity s sake I would call his vernacular order, as being an order rightly passed under Clause (6), Section 145, Criminal Procedure Code. I am unable to agree with the learned Magistrate in the interpretation which he puts upon Clause (6), Section 145; but I am reduced to this difficulty that I have to exercise a jurisdiction which is not vested in this Court, in order to find out whether the Magistrate has exercised jurisdiction which, it is said, is not vested in him. All this points to the great danger of interfering with the clear provisions contained in Section 435, Criminal Procedure Code, and I think the learned Sessions Judge would have in this case exercised a so under discretion if he had refused to act in this matter at all and had left the parties to take such proceedings as seemed to them desirable. A Sessions Judge is not required by law to call for or examine the record of any proceeding before any inferior Criminal Court. It is purely optional with him to do so or not, and in a case like the present guarded by Section 435, Criminal Procedure Code, he would have exercised a wiser discretion, as I have said before, in not calling for the case as he did. However, the case is before me not as a case sent for by this Court, but as a case sent up to this Court, and the proceedings have been looked into and the order of the learned Magistrate has been challenged. I took up the matter as it stands from the time when the learned Magistrate of the second class passed his vernacular order, and I take that order as the Magistrate himself has put it, as an order under Section 147, Criminal Procedure Code. THE proceedings upto that order are final and cannot in any way be interfered with. THEre was apparently no attempt made to secure a proper foundation for the order under Section 147 of the Code of Criminal Procedure. I hold that the order so passed was an order without jurisdiction and I set it aside. So much, therefore, of the vernacluar order as directs that an order be embodied in the form under Section 147 of the Criminal Procedure Code and sent to the Police directing them to deliver possession of the house to the complainant is set aside. It will be for the learned Magistrate to consider, whether when this order hs been set aside, any other order should or should not be passed by him under Section 145 of the Criminal Procedure Code. This is the order passed on the reference made by the learned Sessions Judge.