Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
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Section 6 of the Code of Criminal Procedure enumerates the classes of Criminal Courts and they include Judicial Magistrate of the First Class, Metropolitan Magistrate and the Judicial Magistrate of the Second Class. Section 12(3)(b), Cr.P.C. shows that a Chief Judicial Magistrate exercises general control over all Magistrates. Section 10(1) Cr.P.C. provides that all Assistant Sessions Judges shall be subordinate to the Sessions Judge in whose Court they exercise jurisdiction. Sub-section (1) of Section 397, Cr.P.C. lays down that the High Court or any Sessions Judge may call for and examine the record of any proceedings before any. inferior Criminal Court constituted within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to regularity of proceedings of any such inferior Court. The explanation to this sub-section provides that 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 purpose of this sub-section and of Section 398. In view of Section 6 of Cr.P.C. all Judicial Magistrates (First Class or Second Class), Metropolitan Magistrates and Executive Magistrates are Criminal Courts. By virtue of the explanation of Sub-section (1) of Section 397, Cr.P.C, all Magistrates shall be deemed to be inferior to the Sessions judge. It, therefore, follows that all Magistrates are inferior Criminal Courts and, consequently, the correctness, legality or propriety of any finding, sentence or order passed by them or the regularity of any proceedings of such Magistrates can be examined by the High Court or the Sessions Judge under Sub-section (1) of Section 397. The power conferred by Sub-section (1) of Section 397, Cr.P.C. is in very wide terms. There is nothing to indicate that any order passed by a Magistrate under the Muslim Women (Protection of Rights on Divorce) Act, 1986, would not fall within the purview of Sub-section (1) of Section 397, Cr.P.C. As mentioned earlier, the Legislature has not made any such provision in the Act which may indicate that any finality is attached to the orders passed by the Magistrate. Therefore, the correctness, legality or propriety of any order passed or proceedings conducted by a Magistrate under the Act can be examined by the High Court or the Sessions Judge under Sub-section (1) of Section 397, Cr.P.C. We are, therefore, of the opinion that the view taken in Salim v. Judicial Magistrate, Haridwr 1996 JIC 30, that a revision does not lie against an order passed by a Magistrate under the Act does not lay down correct law. {Para 9}
10. Our answer to the question referred by the learned Single Judge is, therefore, as follows :
'Against an order passed by a Magistrate under the Muslim Women (Protection of Rights on Divorce) Act, 1986, a revision is maintainable before the Sessions Judge under Section 397, Cr.P.C.'
IN THE HIGH COURT OF ALLAHABAD
Criminal Revision No. 1430 of 1999
Decided On: 24.05.2002
Saman Ismail Vs. Rafiq Ahmad and Ors.
Hon'ble Judges/Coram:
G.P. Mathur and R.P. Misra, JJ.
Author: G.P. Mathur, J.
Citation: 2002 Cri L J 3648 (All) (DB),MANU/UP/1313/2002
