Luti Singh and Others vs Ramkirit Singh

Agarwala, J.—This is an application against an order of the District Magistrate of Shahabad setting aside an order of the Sub-divisional Magistrate of Bhabhua u/s 145, Criminal P.C. The Sub-divisional Magistrate decided the proceeding u/s 145 in favour of the present petitioners. The opposite party then moved the District Magistrate who called for the record and directed the matter to be put before him on 7th November.

On 7th November, he heard the pleader for the party whom he describes as the appellant and passed the order complained against on 24th November. It is quite clear that the learned District Magistrate has entirely mistaken the nature of the jurisdiction which he exercises with regard to orders passed u/s 145 by Magistrates subordinate to him. He describes the proceeding before himself as an appeal and then disposes of it as if he were dealing summarily with an appeal u/s 421 without giving the person, in whose favour the trial Court''s order had been passed, an opportunity of supporting the order.

The jurisdiction of the District Magistrate with regard to the proceeding u/s 145 is not appellate jurisdiction. He has not even power to revise the order himself. All he can do is to call for the record of the case u/s 435 and, if he considers that the order should be interfered with, his duty is to refer it to this Court u/s 438. Consequently, the order of the District Magistrate must be set aside and the case sent back to him.

It is open to the District Magistrate to make a reference to this Court if he so desires. It is also desirable that before referring the case to this Court the learned District Magistrate should hear the opposite party (the present petitioners).