Decided on February 08,1999

PREM SAGAR Appellant


- (1.) ORDER :- This Revision Petition arises out of a criminal case under Section 457, R.P.C. against the accused-present petitioner. The case was at the stage of framing of charge, learned Judicial Magistrate Basohli, heard the arguments, discharged the accused and dismissed the charge also. Against this order revision petition was filed before the learned Chief Judicial Magistrate Kathua, who after hearing the parties and appreciating the evidence came to the conclusion as under :- "In the foregoing premises it appears that the learned trial Magistrate has committed an irregularity in appreciating the case of the prosecution. The approach adopted by him is not correct, as such the impugned order calls for interference. The revision petition is accepted. The impugned order is thus set aside. The subordinate Magistrate is directed to reconsider the material placed on record by the investigating Police Officer u/S. 173, Cr. P.C. and make fresh order about framing a charge or otherwise, after giving an opportunity of being heard."
(2.) Against the above order passed by the Chief Judicial Magistrate, Kathua, accused-petitioner has moved this Court under the revisional powers and has urged that C.J.M., Kathua had no power to set aside the order of Judicial Magistrate in a revision but under S. 438, Cr. P.C. he had to refer the matter with his opinion to the High Court.
(3.) Heard learned counsel for the parties. Mr. Mehta learned counsel for the petitioner has contended that the Judicial Magistrate's order is not in accordance with Section 438, Cr. P.C. Under the revisional powers C.J.M. had to sent the record to the High Court with the result of his examination. Learned counsel for the other side who could not spell out anything as law is clear on point that the Session Judge or C.J.M. may if he thinks fit on examining under Section 435 or otherwise the record of any proceedings, report for the order of the High Court the result of such examination. That such report contains recommendation that sentence, order be reversed or altered, may order the execution of such sentence by suspended. There are now two opinions about this provisions of law that the C.J.M. had no power in himself to set aside the order, he had to sent the file to the High Court with his own report. This view is fortified by Full Bench authority of this High Court cited in (S) AIR 1957 J and K 55 : (1957 Cri LJ 1401) 'State v. Abdullah Shah'. It has been held that : "The revisional powers of a Sessions Judge are confined to the provisions contained in Ss. 435, 436 and 438. Having called the record of the case under S. 435, he can under S. 436, when the conditions mentioned therein are fulfilled, direct a further enquiry to be made. But if after perusal of the record called for under S. 435 the Sessions Judge is of the opinion that an order passed by the inferior criminal Court needs correction or setting aside the same, he must report for the orders of the High Court. Now C.J.M. has the concurrent revisional power with the Sessions Judge.";

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