1. One Meraj-ud-Din put in an application under Sections 145/107 of the Cr PC against two persons, Pir Maqbool Shah and Pir Ghulam Shah, with regard to some land along with trees and walls and stones and bricks on this land marked as A, B, C and D in the site plan attached, without specifying the place where this property was situate. He further stated that the fathers of the applicant and the non-applicants were real brothers and all the property of the three brothers was jointly owned and possessed. While the applicant was a minor, his father died, and out of this property jointly owned and jointly possessed the non-applicants were removing certain trees and stones and getting the timber which was on the plot of land. This, according to the applicant, was likely to endanger public peace. He prayed that proceedings under Section 145/107 of the Cr PC be taken against the non-applicants. This application was heard by the City Magistrate Srinagar in whose Court the statements of the applicant and one witness were recorded presumably by some clerk of the Court. Along with this application under Section 145/107 of the Cr PC, the applicant presented an application for attachment of the property. The application was supported by an affidavit.

2. A preliminary order appears to have been drawn up on 28-6-62, the application having been lodged on 27-6-62. This preliminary order is again in the handwriting of the same person who recorded the statements of the applicant and his witness. On the same day we find another order attaching the so-called property in dispute. This is rather a lengthy order which is almost a verbatim reproduction of the contents of the application under Section 145 of the Cr PC and of the application for attachment in the hand of the same person. There are therefore two orders of the same date, one which may be construed as a preliminary order under S. 145(1) and the other an order of attachment of the property in dispute under Section 145(4) of the Cr PC. The first order is not signed by the learned Magistrate. The order of attachment, though written by a clerk, bears the Magistrate's initials. Against this order of the learned Magistrate Pir Ghulam Shah who was a non-applicant in the original application went in revision. His revision application was heard by the Addl. Sessions Judge Srinagar. The Addl. Sessions Judge by means of his order dated 11-10-62 has recommended that the order of the trial Magistrate under Section 145(4) of the Cr PC be vacated.

3. It may be stated here that there is a factual mis-statement in the order of the Addl. Sessions Judge. The Addl. Sessions Judged has seen only one order of the learned Magistrate, namely, the detailed order written by the clerk of the Magistrate under S. 145(4). The attention of the learned Addl. Sessions Judge has not been invited to the other order which, as already stated, may be construed as a preliminary order in this case. The learned counsel appearing for the parties also were not aware of the first order as they referred only to the so-called order of attachment.

4. In this Court Pir Ghulam Shah who had moved the Sessions Court in revision put in an application for withdrawal of his revision petitions and prayed that the property in dispute may continue to be under attachment. The other non-applicant, Maqbool Shah, desires to have judgment on merits.

5. The learned counsel for Pir Ghulam Shah contended before me that I should not interfere because according to him it is not in every case where some illegality has been committed by a trial Court that the High Court should interfere. According to him when the real aggrieved person, who had moved the revisional Court, felt satisfied with the order passed by the trial Magistrate and did not wish to press his revision application I should drop the matter and allow the order of attachment to stand. He invited my attention to Note 21 under S. 439 in Sohoni's Criminal P.C (1962 edn.) I shall cite a few authorities referred-to in this note. What I have been able to understand from these authorities is that it is not in every case of a mere illegality that the High Court will set aside an order in revision, that some prejudice should be caused to one of the parties and that mere technical errors of law committed by the Courts below do not always warrant an interference by the High Court on the side of its revisional jurisdiction. But where the illegality committed is about a point of law of general importance or where prejudice has been caused to one of the parties, the High Court will and must necessarily interfere exercisng its powers of revision and superintendence over the lower Courts.

6. In Hanuman Prasad v. Mathura Prasad, AIR 1933 Oudh 421 it has been held that “unless failure of justice is caused, High Court will not interfere.” Here the question related to enhancement of sentence at the application of a private party.

7. In Sher Singh…Complainant v. Jitendranath Sen…Accused Opposite Party., AIR 1931 Cal 607 it has been held that

“the exercise of the revisional powers of the High Court is entirely discretionary. In a revisions matter the High Court does not take a technical view and interfere in every case, where an order has been made irregularly or even improperly.”

8. In Ram Udit v. Jagannath, AIR 1942 Oudh 342 the point involved was that the accused was not examined under Section 342 of the Cr PC after re-cross-examination of the prosecution witnesses. The High Court, in the circumstances of the case, did not think fit to interfere because of this illegality committed by the Magistrate.

9. In Niamat Khan v. The Crown, AIR 1951 Nag 206 it was held that

“the High Court will not always interfere in revision even though the order of the Court below is wrong in law or the trial in the Court below is illegal and not merely irregular if no prejudice is shown to have resulted to the accused. The power of interference is to be exercised only for the purpose of correcting injustice and not merely illegality.”

10. Here the revision application was made after great delay. Even though the order was not strictly legal, the High Court did not interfere.

11. In Nagi Reddy v. Sanjeeva Reddy, AIR 1942 Mad 532 (2) the accused was sentenced to a small fine. The error that was discovered by the High Court was that the accused was convicted of house trespass whereas he was guilty of simple trespass. The accused was held not to have been prejudiced and the High Court therefore did not interfere in revision.

12. In Bal Gobind Thakur v. Emperor, AIR 1926 Pat 393 it was held that

“Where a Magistrate convicts the accused for a lesser offence within his jurisdiction, and the facts constituting grave offence were not within his jurisdiction, the High Court will not interfere”

because no prejudice was held to have been caused to the accused.

13. In Jagdish Singh v. Emperor, AIR 1948 Pat 29 it has been held that

“It is not the practice of the High Court of Patna to interfere in revision unless it considers that there is a real possibility that there has been a miscarriage of justice.”

14. The few authorities that I have cited above reveal that the High Court will not interfere in merely small matters of technicalities and illegalities committed by the lower Courts unless prejudice is caused to a party. When I discuss the facts of this case and the illegalities committed by the Magistrate in detail, it will be quite obvious that these authorities have no application to the facts of the present case. Before taking up a discussion of the points of law involved in the case and the prejudice that has been caused to the non-applicants, may be one of them, by the order of the Magistrate, I.Would like to cite a few other authorities which make it obligatory on the High Court to interfere. When there is some illegality which involves a point of law of general importance or where hardship has been caused to one of the parties, it has been made obligatory on the High Court to interfere in revision.

15. The Privy Council authority reported as Subrahmania Ayyar v. King-Emperor, ILR 25 Mad 61, lays down that

“the disregard of an express provision of law as to the mode of trial was not a mere irregularity such as could be remedied by Section 537 of the Cr PC.”

16. It was held that “the trial having been conducted in a manner prohibited by law was altogether illegal” and the conviction was set aside.

17. In the National Bank of India v. Kothandarama Chetti, 14 Cri LJ 529 (Mad) Sundara Iyer, J. observed:

“I would be strongly inclined to hold that no hard and fast limitation should be placed on the exercise of our powers of superintendence over the proceedings of inferior Courts. I would hold with Woodroffe, J. in Lekhraj Ram v. Debi Prasad, 7 Cri LJ 499 (Cal), that there is no species of injustice which this Court would be powerless to correct under the Charter where its interference is called for.”

18. Similarly in Bhoop Singh Kehri Singh…Applicant; v. The State Of Madhya Bharat, AIR 1954 Madh-B. 8 it was held that

“No hard and fast limitation can be placed on the visitatorial jurisdiction of the High Court and it must be well understood that there is no species of injustice which the High Court would be powerless to correct where its interference is called for.”

19. In Sewa Subramonian v. Emperor, AIR 1931 Rang 161 a retrial was ordered because it was held that there was a mis-joinder of charges and trials.

20. In Ibrahim v. Guran Ditta Mal, AIR 1932 Lah 362 it has been held that

“the High Court sitting as a Court of revision is entilied to rectify any error of law which would lead to injustice.”

21. In Shrirang Jayaba v. Emperor, AIR 1932 Bom 637 it has been laid down that

“the discretion of the High Court under Section 439 of the Cr PC should be exercised to prevent injustice or where a point of law of general importance is involved.”

22. In Pranab Kumar v. State of West Bengal, AIR 1959 SC 144 it was held:

“Where the High Court thinks it fit and proper to entertain an application in revision or calls for the record suo motu then notwithstanding the death of the convicted person pending the revision it has the power to examine the whole question of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view.”

23. Now, after a discussion of the authorities which lay down certain broad principles with regard to the exercise by the High Court of its revisional powers, I would like to take up the facts and the joints of law involved in this case. I put it to the learned counsel appearing for Pir Ghulam Shah whether his withdrawal from the revision would put an end to the proceedings. In reply he had no authority to cite but only invited my attention to Note 21 under Section 439 in the Criminal P.C by Sohoni.

24. A perusal of Section 435 of the Cr PC would show that the High Court has ample powers even suo motu to call for and examine the record of any proceeding before any inferior criminal Court situate within its local limits and satisfy itself as to the correctness, legality or propriety of any finding or order. The words used are not only legality or correctness but even the propriety of an order. I would personally think that the powers of the High Court are very wide and in the circumstances of a particular case the High Court is empowered to set aside an order apart from its being illegal or incorrect, simply on the ground of its being improper.

25. Now in this case what we discover in the first place is that the learned Magistrate has practically abdicated his power in favour of his clerk. The preliminary order which gives jurisdiction to the Magistrate in proceedings under Section 145 of the Cr PC is not even signed or initialed by him. Secondly, the order of attachment is a verbose reproduction, according to the lights and intelligence of the clerk, of the contents of the application under Section 145 of the Cr PC as well as the application for attachment. Such orders more so orders of attachment of property are very important and they have the effect of causing serious inconvenience and prejudice to one of the parties at least. Such extra-ordinary powers should not be exercised as a matter of routine, but should be exercised only in emergent cases necessitating immediate action. It is not only desirable but necessary that the trial Magistrates should apply their own mind to the facts of a particular case such important orders should not be left to the discretion and the intellectual capacities of clerks. The least that can be said is that this practice is highly objectionable and the sooner it comes to an end, the better. Moreover, it has been found that the extraordinary provisions of Section 145(4) of the Cr PC are taken resort to as a matter of routine, though it has been held not only by this High Court but by all the High Courts in India that such, emergency measures should be taken only in exceptional cases and an attachment under S. 145(4) should not almost as a rule follow an application under Section 145 of the Cr PC.

26. Apart from these general observations, the light-heartedness of the Magistrate in dealing with this case is obvious from fact that the application itself and the so-called order of attachment unequivocally contain, recital that the property about which action is sought to be taken under Section 145 of the Cr PC is the jointly owned and jointly possessed property of the parties. I am not prepared to concede that the learned Magistrate did not know that Section 145 of the Cr PC has no application to the case of property jointly possessed. This has been laid down uniformly by all the High Courts including this Court Gopinath Singh v. Emperor, AIR 1948 Oudh 130 and Nahar Singh v. The State, AIR 1951 Raj 156 and similar other authorities can be cited for this proposition.

27. Presuming, as I should do, that the learned Magistrate knew that this was the law, there was no justification for him to have passed either the preliminary order or one of attachment under Section 145 of the Cr PC these two orders are only the result, as I said earlier, of the in-attention of the learned Magistrate and the virtual abdication of his powers in favour of his clerk. I am sure if the learned Magistrate had even cared to read the orders, he would never have been a party to any such order being issued and would not have signed the same. His own explanation belies him in so far as he admits knowing the law on the subject, as would be clear from his explanation reproduced below:

“The property though described joint was held as the different owners in possession, (sic) Each owner had a specific plot in his possession and it was that the applicant's possession was being disturbed which was likely to cause breach of peace.”

28. This is clearly against the facts of this case. I have perused the application which I have cited in extenso and the statements of the applicant as Well as that of his witness and it is nowhere stated that each owner had a specific plot in his possession. This explanation of the learned Magistrate is, to say the least, most painful.

29. From the above it would appear that no proceedings under Section 145 of the Cr PC could be taken in this case as the property in dispute was admittedly in the joint possession of the parties. Secondly, what I find is that neither in the application nor in the preliminary order is the place where the property is situate mentioned. This constitutes another grave irregularity in the preliminary order as well as the proceedings.

30. In this state of affairs, the contention of the learned counsel for Pir Ghulam Shah that I should not interfere is a suggestion which does not deserve to be seriously heeded, and this Court shall be failing in its duty if it were not to take a very serious view of the irregularities committed by the learned magistrate. Hence the necessity of setting aside the entire proceedings under Section 145 of the Cr PC has become imperative for me. The result is that the reference is accepted and the entire proceedings before the learned Magistrate are quashed.

GG/D.H.Z

31. Reference accepted.