Ved Prakash vs State of Uttar Pradesh and Others

B.C. Jauhari, J.—This is a petition u/s 482 Code of Criminal Procedure with a prayer that the orders passed by the Executive Magistrate dated 17-11-1980 and 5-5-81 dropping the proceedings u/s 145 Code of Criminal Procedure and releasing the property in dispute in favour of the opposite parties Nos. 2 to 5 as also the order of the learned Sessions Judge dated 21-2-1981 passed in revision be set aside.

It appears that there were Section 145 Code of Criminal Procedure proceedings between the parties which continued for a long time and ultimately the learned Sub-Divisional Magistrate passed his order dated 5-5-81 to the effect that the proceedings were dropped and the property released in favour of the opposite parties. The Petitioner thereafter filed a revision in the Court of the Sessions Judge and the 8th Additional Sessions Judge, Meerut vide his order dated 21-2-1981 found the revision without any merit and dismissed the same. Feeling aggrieved the Petitioner has invoked the inherent jurisdiction of this Court.

The case was called out several times. The list has been revised. None appeared for the Petitioner. I have perused the affidavits, counter affidavit and rejoinder-affidavit filed in this case and find that this petition has no force and must be dismissed. In the first instance it is significant to note that the order passed by the learned Magistrate u/s 145 Code of Criminal Procedure which is challenged In these proceedings was the subject matter of revision before the Sessions Judge. Under the Code of Criminal Procedure the Court of revision examines the propriety, legality and correctness of findings of the lower Court and passes suitable orders. The Court of revision has all the powers of a Court of appeal under the Code of Criminal Procedure. Under the scheme of the Code of Criminal Procedure the Petitioner had the option of forum of the revision and could either prefer a revision before the Court of Sessions or come to the High Court directly. He has availed of his right of revision before the Sessions Judge u/s 397(3) Code of Criminal Procedure. Once a revision has been filed by a party before one Court, that party is precluded from filing a Second revision before the other Court namely, if he has preferred a revision to the Court of Sessions, he cannot be heard In another revision before the High Court. The Petitioner has had a full hearing before the Court of Sessions and the arguments urged on behalf of the Petitioner were considered by the learned Sessions Judge. The learned Sessions Judge has held that the proceedings under Sections 107/116 Code of Criminal Procedure between the parties have ended and the file showed that there was no apprehension of breach of peace. Once this finding, that there was no apprehension of breach of peace, has been confirmed by the Court of revision the very basis of proceedings u/s 145 Code of Criminal Procedure disappears. u/s 145 Code of Criminal Procedure it is essential before the Executive Magistrate can have jurisdiction to exercise his powers, that there must be an apprehension of breach of peace. Once that disappears the Magistrate ceases to have any jurisdiction in the matter.

While it is true that the inherent jurisdiction of the High Court is preserved u/s 482 Code of Criminal Procedure and is not dependent upon the exercise of power of revision u/s 397 Code of Criminal Procedure and the two provisions are distinct and meant to cater for different purposes, the inherent jurisdiction of the High Court u/s 482 Code of Criminal Procedure is exercised only in one of the three contingencies laid down in the section, namely, in order to secure the ends of justice, to prevent the abuse of process of Court or to give effect to any order under the Code. In the instant case there is neither the abuse of process of Court, nor is there a contingency where any order under the Code is required to be given effect to nor it is necessary to invoke the inherent jurisdiction to secure the ends of justice. Consequently, this petition has no force and deserves to be dismissed.

In the result the application is dismissed. The stay order passed by this Court on 6-7-1981 is vacated.