An order passed by a Magistrate under Sections 107/111, Cr. P. C. is an interlocutory order and, therefore, revision against such an order is not maintainable under Section 397(2), Cr. P. C.

M. MURTAZA HUSAIN, J.

( 1 ) THIS criminal revision is directed against the order dated 31st October, 1975 passed by the Sessions Judge, Basti whereby he dismissed a revision filed by the revisionist against the order dated 11th April 1975 passed by the Subdivisional Magistrate, Basti, under Section 107/111, Cr. P. C. (new ). Through that order the learned Magistrate expressed his satisfaction to the effect that there was apprehension of breach of peace on behalf of the revisionist and he directed a notice to be issued to the revisionist to show cause as to why should they not be bound down.

( 2 ) THIS revision was admitted by Honble H. N. Kapoor, J. on 22nd December, 1975. The learned Judge was doubtful about the maintainability of this revision because in his opinion the impugned order passed by the Magistrate was an interlocutory order as contemplated by Section 397 (2), Cr. P. C, (New) whereby no court of revision could interfere with it. A Single Judge decision of this Court in Trijugi Narain Shukla v. State (1975) 1 All LR 627 was cited before him wherein it was held that an order passed by a Magistrate under Section 107/111, Cr. P. C. (new) was not an interlocutory order. In view of that decision Honble Kapoor J. , was of the view that an authoritative pronouncement by a larger Bench should be given on the point. In this way the present revision has come before us for disposal.

( 3 ) THE Code of Criminal Procedure lays down specific procedure for inquiry and trial of cases of different nature, While handling an inquiry or a trial under that Code a Court is called upon to determine several questions before passing an order either discharging the accused or convicting or acquitting him. The proceedings of the subordinate courts determining such questions were subject to revision by the Sessions Judge or the High Court under Sections 435 to 439, Cr. P. C. (1898 ). Under the New Code of 1974 the position has become different because its Section 397 (2) precludes courts of revision from exercising jurisdiction conferred by Section 397 (1) of the Code where the said jurisdiction is invoked with respect to an interlocutory order. The entire Section 397 of the new Code runs as follows: Calling for records to exercise powers of revision : (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purposes of satisfying itself or himself as to the correctness, legality or propriety of any finding sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court, and may, when calling for such record, direct that the execution of any sentence or order be suspended and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation- All Magistrates, whether Executive or Judicial and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398.

(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. ( 4 ) A bare reading of this section would indicate that under Sub-section (1) the High Court or the Sessions Judge can call for and examine the record of any proceedings pending before any inferior criminal court situate within its or hie local jurisdiction in order to satisfy itself or himself as to correctness etc. of the finding, sentence or order passed by the said court and as to the regularity of the proceedings held by that court. Sub-section (2) however, bars the exercise of that ju

Click Here to Read the rest of this document