1953 Supreme(Ori) 21

HIGH COURT OF ORISSA
NARASIMHAM,MOHAPATRA, JJ.
Krushna Mohan
Versus
Sudhakar Das
Criminal Revn. No.71 of 1952
Decided On : 06-04-1953

An order under S.145(6), Criminal P.C. is not a judgment within the meaning of S.369, Criminal P.C. and a Magistrate has no inherent power to review or revise it, except where the order is a nullity due to the failure to serve the required preliminary notices under sub-s.(1) of S.145 on all the parties.

Headnote:

CRIMINAL PROCEDURE CODE - SECTION 145(6) - ORDER PASSED UNDER - NOT A JUDGMENT WITHIN THE MEANING OF SECTION 369 - MAGISTRATE HAS NO INHERENT POWER TO REVIEW OR REVISE IT - EXCEPTION - WHERE ORDER IS A NULLITY.

Fact of the Case:

The petitioners were the second party in a proceeding under S.145, Criminal P.C. The proceeding was initiated by the Subdivisional Magistrate on the basis of a police report and the usual notices to both parties were directed to issue. On 15-3-50 both parties appeared before the Court and the first party filed their written statement on the same date whereas the second party filed their written statement on 6-4-50. The case was then transferred to the file of Sri N.N. Mitra, Magistrate 1st Class for disposal. After some adjournments the case was fixed for hearing on 10-3-51 on which date the first party were absent. The learned Magistrate then passed an ex parte order declaring the second party's possession of the disputed property. On the very same date, however, soon after the aforesaid order was passed the first party filed a petition for setting aside the ex parte order and the learned Magistrate then passed an order revising the ex parte order and restoring the case on payment of costs. Then after several adjournments the case was taken up on 25-6-51. On that date the first party were present with their witnesses; but the second party were absent. When the case was taken up at about 1 p.m. neither party nor their lawyers responded to the call. The Court, therefore, directed that the case should be put up on 26-6-51 for ex parte order. On 26-6-51 the learned Magistrate revised the order dated 25-6-51 and directed that the case should be heard on merits on payment of costs by the second party. Then on 21-8-51 one witness of the first party was examined and cross-examined by the second party and the case was adjourned to 4-9-51. After two further adjournments when the case was taken up on 24-9-51 the second party filed a petition stating that the Magistrate had no jurisdiction to review or revise his final order under S.145, Criminal P.C. passed on 10-3-51. After several adjournments this question of law was taken up for hearing by Mlv. S. Ali, the successor of Sri N.N. Mitra, who on 8-2-52 passed an order rejecting the petition and holding that whatever error might have been committed by Sri N.N. Mitra in reviewing his first order dated 10-3-51 the second party by cross-examining the witness examined by the first party on 21-8-51 had practically waived their objection. This revision petition has been filed against this order.

Finding of the Court:

The Court held that an order under S.145(6), Criminal P.C. is not a judgment within the meaning of S.369, Criminal P.C. and that a Magistrate has no inherent power to review or revise it. However, an exception was made where an order under S.145(6), Criminal P.C. is itself a nullity due to the failure to serve the required preliminary notices under sub-s.(1) of S.145 on all the parties.

Issues: Whether an ex parte order passed by a Magistrate under sub-s.(6) of S.145, Criminal P.C. after the valid service of notices on both parties as required by sub-s.(1) of that section can be revised by him subsequently.

Ratio Decidendi: The Court held that an order under S.145(6), Criminal P.C. is not a judgment within the meaning of S.369, Criminal P.C. and that a Magistrate has no inherent power to review or revise it. However, an exception was made where an order under S.145(6), Criminal P.C. is itself a nullity due to the failure to serve the required preliminary notices under sub-s.(1) of S.145 on all the parties.

Final Decision: The Court allowed the revision petition and held that the only valid order at present existing in the proceeding under S.145, Criminal P.C. is the order dated 10-3-51 declaring the second party to be in possession of the disputed property. All subsequent orders were held to be invalid and inoperative.