- (1.) THIS reference by the learned Sessions Judge of Meerut arises out of a proceeding under section 476, Cr P. C. The matter has arisen thus.
(2.) KAMRA filed a complaint under Ss. 447, 352 and 506, I. P. C. against Smt. Rajdulari and others. That criminal case ended in the acquittal of the accused persons. Subsequently Murari Lal, on behalf of Smt. Rajdulari, moved the learned magistrate for taking proceedings under Section 476, Cr. P. C. against Kamra and Shabbir ahmad on on the ground that, they had given false evidence on oath during the trial. The learned magistrate (Sri Harihar Prasad) rejected the application under Section 476, Cr. P. C. Against that order passed by Sri Harihar Prasad two separate appeals were filed. They were numbered as 69 and 70 of 1952. The two appeals were directed against Kamra and Shabbir Ahmad. Those two appeals were disposed of on 31-7-1952 by Sri Kazmi, who was then the Additional Sessions Judge of Meerut. He set aside Sri Harihar Prasad's order, and remanded the case for further enquiry. The matter was subsequently dealt with by another Magistrate, Sri Chaturvedi. After holding further enquiry under Section 476, Cr. P. C. Sri Chaturvedi passed an order on 26-12-1952 ordering the prosecution of Kamra, but refusing to file a complaint against Shabbir Ahmad Khan. Against this order dated. 26-12-1952, two separate appeals were filed by the parties. Kamra filed criminal Appeal No. 73 of 1953 against the order in so far as the order directed his prosecution. Criminal Appeal No. 115 of 1953 was filed by Murari Lal against the same order in so far as Sri chaturvedi declined to file a complaint against Shabbir Ahmad Khan. These two connected appeals (Nos. 73 and 115 of 1953) came up for disposal before the learned Sessions Judge of meerut. A point was raised before the learned Sessions Judge that, Sri Kazmi's order dated 31-7-1952 remanding the case for fresh enquiry under Section 476, Cr. P. C. was bad in law. The learned Sessions Judge accepted this contention, and has, therefore, made this reference to the High Court recommending that, Sri Kazmi's order dated 31-7-1952 and subsequent proceedings before the first class Magistrate should be quashed.
(3.) MR. Mital appearing for the complainant raised a preliminary objection that, the learned sessions Judge was not competent to make a reference against an order of an Additional sessions Judge. The present reference has been made by the learned Sessions Judge under section 438, Cr. P. C. Section 438 (1), Cr. P. C. states: "the Sessions Judge may. . . . . . . . . . . . on examining under Section 435 or otherwise the record of any proceeding, report for the orders of the High Court. . . . . . . . . . . . . " Section 435, Cr. P. C. confers upon certain Courts the power to call for record of inferior courts. An Additional Sessions Judge is not inferior to the Sessions Judge. I, therefore, agree with Mr. Mital that under Section 435, Cr. P. C. the learned Sessions Judge was not competent to call for records of the Additional Sessions Judge.;