B.P. Beri, J. - (1.) THIS is an application under Section 439 of the Code of Criminal Procedure for revising an order passed by the Sub -Divisional Magistrate, Rajasthan on the 5th of September, 1967 in a proceeding under Section 145 Cr.P.C.
(2.) THE brief facts which give rise to this application are that Keshar Singh who claims to be the adopted son of Nahar Singh, made an application on the 4th of March, 1967 under Section 145 Cr.P.C. that 21 agricultural fields situate in village Farara at Gujra well belong to him and have been in his cultivatory possession from the date of his adoption namely, 23rd August, 1952, and that he had paid land revenue in regard to these fields. His adoptive mother Mst. Deu. widow of Nahar Singh, who lived with him and who was maintained by him, created some iris -understanding between her and Lal Singh, who is the husband of Mst. Deu's daughter, and he was claiming the fields against the applicant and threatened to commit a breach of the peace in order to dispossess him. He further relied on the Gasht Girdawari. The learned Magistrate by his order of the 14th March, 1967 passed a preliminary order and issued a notice to Mst. Deu, Lal Singh and 4 others. Mst. Deu filed a reply with a plea that she had transferred by means of a gift -deed dated the 31st of August, 1966 the agricultural lands in dispute to her son -in -law, Lal Singh. Both the parties filed their affidavits and the Sub -Divisional Magistrate, Rajasthan relying on the affidavits filed on behalf of Mst. Deu came to the conclusion that she was in possession of the property in dispute and declared her possession until she was evicted in due course of law. Keshar Singh has come upto this Court. Mr. S.K. Mal Lodha, appearing for the opposite parties, raised a preliminary objection that this Court should reject the application because the applicant has not made any application in the first instance either before the Sessions Judge or the District Magistrate having jurisdiction in the case and has come directly to the High Court under Section 439 Cr.P.C. In support of his submission he relied on a decision of the Nagpur High Court in Bajirao v. Mst. Dadibai and Kama Bai, AIR 1926 Nag. 285; a decision of the Assam High Court in Gobardbandas Khakalia v. Chaturbhuj Khaldalia and Anr., AIR 1950 Gau. 165; a decision of the Andhra Pradesh High Court in Veera Rammayya and Ors. v. Udayagiri Venkata Seshvstharam and Anr. : AIR 1953 A.P. 97 and on Rule 308 of the Rajasthan High Court Rules, 1952 (hereinafter called 'the Rules').
(3.) THE objection has been met by Mr. M.L. Shrimal on the ground that whatever may have been the position prior to the enactment of the Indian Limitation Act, 1963 (Act XXXVI of 1963), Article 131 of this Act, now provides a period of 90 days' limitation for the exercise of its revisional powers. It is the order of the trial Court in criminal revisions which is subjected to scrutiny and as it is not normally possible to exhaust this remedy within 90 days and, therefore a direct approach to the High Court should not be barred. He relied on Sahdev Mandal and Ors. v. : AIR1967Pat223 ; Sakhichand Sahu and Anr. v. : AIR1967Pat351 ; S. Narayanan v. Kannamma Bhargavi and Ors., AIR 1967 Ker. 126 and Bon Behari Mondal v. Bhusan Chandra Barui and Ors., AIR 1967 Cal. 287.;