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1968 Supreme(Pat) 180
PATNA HIGH COURT
B.D.Singh, J.
Hajari Shafi
Versus
Ramasis Thakur
Criminal Revision No. 382 of 1968 ;
Decided On : NOVEMBER 25, 1968
A succeeding Magistrate cannot sign, date, and deliver a judgment written by his predecessor in a proceeding under Section 145 of the CrPC, as the provisions of Section 350 of the CrPC are not applicable to such proceedings.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 350 - SECTION 145 - SECTION 528 - SECTION 367 - SECTION 4(1)(K) - SECTION 145(4) - JUDGMENT BY SUCCEEDING MAGISTRATE - VALIDITY - INTERPRETATION OF PROVISIONS - APPLICABILITY TO PROCEEDINGS UNDER SECTION 145 - DISTINCTION BETWEEN JUDGMENT AND ORDER - SCOPE OF SECTION 350 - OPTION OF SUCCEEDING MAGISTRATE TO ACT ON EVIDENCE RECORDED BY PREDECESSOR OR ORDER DE NOVO ENQUIRY - MANDATORY REQUIREMENT FOR HEARING PARTIES AFRESH UNDER SECTION 145(4) - APPLICABILITY OF SECTION 367 TO PROCEEDINGS UNDER SECTION 145.
Fact of the Case:
A proceeding under Section 145 of the Criminal Procedure Code (CrPC) was initiated due to apprehension of breach of peace over 300 bighas of land. During the pendency of the proceeding, the trying Magistrate, Sri Baliram Singh, wrote a 42-page judgment but did not deliver it as the record was called from his file. Subsequently, he was transferred. The Sub-Divisional Officer (SDO) directed the succeeding Magistrate, Sri Jaideo Das, to sign, date, and deliver the judgment written by Sri Baliram Singh. The petitioners, who were the first party in the proceeding, challenged this order in revision.
Finding of the Court:
The court held that the impugned order directing the succeeding Magistrate to sign, date, and deliver the judgment written by his predecessor was contrary to the provisions of law. The court observed that Section 350 of the CrPC, which allows a succeeding Magistrate to act on evidence recorded by his predecessor, does not empower him to sign and deliver a judgment written by his predecessor. The court further held that a proceeding under Section 145 of the CrPC amounts to an inquiry as defined under Section 4(1)(k) of the CrPC, and Section 145(4) of the CrPC mandates the Magistrate to hear the parties afresh before concluding the inquiry.
Issues: 1. Whether a succeeding Magistrate can sign, date, and deliver a judgment written by his predecessor in a proceeding under Section 145 of the CrPC? 2. Whether the provisions of Section 350 of the CrPC are applicable to proceedings under Section 145 of the CrPC? 3. Whether an order under Section 145 of the CrPC is a judgment to which the provisions of Section 367 of the CrPC apply?
Ratio Decidendi: 1. Section 350 of the CrPC allows a succeeding Magistrate to act on evidence recorded by his predecessor, but it does not empower him to sign and deliver a judgment written by his predecessor. 2. A proceeding under Section 145 of the CrPC amounts to an inquiry as defined under Section 4(1)(k) of the CrPC, and Section 145(4) of the CrPC mandates the Magistrate to hear the parties afresh before concluding the inquiry. Therefore, the provisions of Section 350 of the CrPC are not applicable to proceedings under Section 145 of the CrPC. 3. An order under Section 145 of the CrPC is not a judgment to which the provisions of Section 367 of the CrPC apply.
Final Decision: The court set aside the impugned order and directed that the proceeding be disposed of either by the permanent SDO or by Sri Jaideo Das, Magistrate, as soon as possible, in accordance with law.
B.D.Singh, J.
1. This revision was filed by Hajari Shafi and 112 others. They were first party in the court below under Sec.145 of Criminal Procedure Code. It has been filed against the order dated 13th of September, 1967 of the Sub-divisional Officer, Sitamarhi, directing Sri Jaideo Das, Magistrate, 1st class, to sign, date and deliver the judgment already written by Sri Balram Singh, the predecessor in office who heard the case because he was transferred to some other place.
2. Before I take up the consideration of this revision it will be necessary to dispose of the application of the petitioners dated 7-3-1968 in which they have prayed for condonation of delay in filing the revision before this Court. According to provisions under Article 131 of the Limitation Act, 1963 , the period for filing revision against the order is 90 days whereas in the instant case the petitioners have filed the petition much beyond the period of limitation prescribed. In the past, the practice was that in such cases reference petition used to be filed before Sessions Judge and that used to take long time. Therefore, now it has been decided by a Bench of this Court that instead of going to Sessions Judge, in order to save time revision should be filed direct to this Court. In spite of that the petitioners in this case filed the application before Sessions Judge for reference against the impugned order. In the ground for condonation of the delay they have alleged that due to wrong advice given by the lawyers they filed the application before the Sessions Judge, Muzaf-farpur. There are some decisions of this Court which do not favour condonation of delay in such cases, as sufficient opportunities now have been given to the members of the public to know about limitation prescribed by the said Act. But in this case since a substantial question of law is involved I feel inclined to condone the delay and to hear the application on merits and I order accordingly.
3. It appears that in 1963 a proceeding under Sec.144 of the Code of Criminal Procedure (hereinafter referred to as the Code) was drawn up by the Sub-Divisional Officer against both the parties due to apprehension of breach of the peace in respect of about 300 bighas of land in village Birpur of police station Sursand in the district of Muzaffarpur.
4. On 12-12-1963 the said proceeding was converted into one under Sec.145 of the Code. On 13-9-1966, the conduct of the proceeding was ended and 13th of October, 1966 was fixed for final order.
5. Sri Baliram Singh, who was the trying Magistrate, gave various adjournments and ultimately fixed 20-4-1967 for delivering the judgment in the said proceeding. A day earlier that is on 19-4-1967, the petitioners filed an application before the Sub-Divisional Officer under Sec. 528. Clause (2) of the Code to recall the case from the court of SrJ Baliram Singh and to hear the case on merit and to deliver the judgment.
6. On the same day i. e. on 19-4-1967 Sri R. N. Tewary, 3rd Officer who was acting as Sub-Divisional Officer in the absence of the Sub-Divisional Officer recalled the case and ordered the application under Sec. 528 of the Code to be put up before Sub-Divisional Officer for final order.
7. On 20-4-1967, the petitioners again filed a petition before Sri Baliram Singh that he should not sign the judgment as the record has already been called from his file. Sri Baliram Singh, however, made a note in the order-sheet that the judgment of 42 pages has already been written by him but he will not deliver the same as the record has been called from his file. Subsequently Shri Baliram Singh was transferred.
8. On 13-9-1967, the petitioners application under Sec. 528 of the Code was heard by the Sub-Divisional Officer and he directed Shri Jaideo Das, who succeeded to the office of Sri Baliram Singh, to date, sign and deliver the judgment which was written by Sri Baliram Singh, the then trying Magistrate. Against this order this revision has been fil
