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N.D. Tushnial and ors. Vs. Abdul Rezak and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantN.D. Tushnial and ors.
RespondentAbdul Rezak and ors.
Prior history
G. Mehotra, C.J.
1.These two references have come up before this Bench of two judges on a reference by a single judge. The main point raised in the two cases on behalf of the opposite parties is that the Additional District Magistrate is not competent to make a reference under Section 435, Criminal Procedure Code.
2. The facts leading to criminal reference No. 18/61 are that on 16th November 1960, one Sunawar Ali, President of Vatir Kapa Gaon Sabha made a petition before the Subdivisional Offi
Excerpt:
- - section 10(2), criminal procedure code which authorises the additional district magistrate to exercise all the powers of the district magistrate under any other law, clearly would not authorise an additional district magistrate to exercise the district magistrate's power under some special law which enacted that the district magistrate alone and no other person or authority would be empowered to do a certain act. came up for decision before their lordships of the supreme court was whether the additional district magistrate who has been appointed as such by a notification whereunder he was invested with, all the power of the district magistrate under the criminal procedure code as well as any other law for the time being in force, is competent to deal with an application under..........the main point raised in the two cases on behalf of the opposite parties is that the additional district magistrate is not competent to make a reference under section 435, criminal procedure code.2. the facts leading to criminal reference no. 18/61 are that on 16th november 1960, one sunawar ali, president of vatir kapa gaon sabha made a petition before the subdivisional officer, hailakandi under section 145, criminal procedure code to the effect that there was apprehension of breach of the peace between the parties at the time of harvesting of the paddy over the disputed land. the preliminary order was passed by the magistrate after getting the necessary report from the police. one gangesh gore, sampat gore and kampu pashi made a joint petition praying for including them in the.....
Judgment:

G. Mehotra, C.J.

1.These two references have come up before this Bench of two judges on a reference by a single judge. The main point raised in the two cases on behalf of the opposite parties is that the Additional District Magistrate is not competent to make a reference under Section 435, Criminal Procedure Code.

2. The facts leading to criminal reference No. 18/61 are that on 16th November 1960, one Sunawar Ali, President of Vatir Kapa Gaon Sabha made a petition before the Subdivisional Officer, Hailakandi under Section 145, Criminal Procedure Code to the effect that there was apprehension of breach of the peace between the parties at the time of harvesting of the paddy over the disputed land. The preliminary order was passed by the Magistrate after getting the necessary report from the police. One Gangesh Gore, Sampat Gore and Kampu Pashi made a joint petition praying for including them in the second party as they claimed possession of a portion of the disputed land. They Were allowed to be impleaded as parties. On the 19th December 1960, one Hashmaya and one Bimaya submitted a petition for including them in the second party. This was rejected. Another petition was made by them with the same prayer on the 19th January 1961. This was also rejected. Gangesh, Sampat and Kampoo, however, became second parties Nos. 6, 7 and 8 respectively. The parties filed their affidavits and the Magistrate after consideration of the whole matter held that the first party was in possession over the disputed land at the time of drawing up of the proceeding and was entitled to retain such possession until ousted by due course of law. Against this order a revision was filed by the second party before the Additional District Magistrate. He then by his order dated the 15th May, 1961 referred the matter to this Court for final orders.

3. The facts of Criminal Reference No. 25/61 are that Shri Harendra Nath Das the first party purchased four bighas of land from Msst. Kon Kaibortani by a registered sale deed dated 5-4-60. After the purchase the first party got mutation of the land. The case of the first party was that during the language trouble in July 1960, he had to leave his village and after six weeks he came back and found that three members of the 2nd party namely, Loknath, Daturam and Mohan forcibly possessed his land. On the 11th October 1960, a petition was filed by the first party under Section 145, Criminal Procedure Code. It was sent to the police for inquiry. Proceedings were drawn up under Section 145, Criminal Procedure Code after receipt of the police report and parties were asked to prefer (their claim to the fact of possession over the disputed land. The Magistrate held that the first party is in possession of the disputed land and declared that the first party will remain in possession until evicted therefrom by the proper course of law. Against this order a revision is filed and the Additional District Magistrate, Darrang by his order dated the 22nd October 1961, referred the matter to this Court with the recommendation that the order of the Magistrate be set aside. The Additional District Magistrate was of opinion that the first party never took possession of the disputed land. He also found that on the admitted facts the first party could not be declared to be in possession as he has not come up within two months of his dispossession.

4. The main point raised in both these petitions is about the power of. the Additional District Magistrate to refer the matter to this Court.

Section 435(1) provides as follows:

The High Court or arty Sessions Judge or District Magistrate, or any Sub-divisional Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court situate within the local limits of its or his 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 the regularity of any proceedings of such inferior Court and may, when calling for such record, direct that the execution of any sentence or order be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

The explanation to the section makes all Magistrates, whether exercising original or appellate jurisdiction to be inferior to the Sessions Judge for the purposes of Section 435(1) and of Section 437. Section 438, Criminal Procedure Code provides that the Sessions Judge or the District Magistrate may, on examining the record under Section 435, Criminal Procedure Code report the matter to the High Court for orders and under Section 439, Criminal Procedure Code final orders are passed by the High Court.

The contention on behalf of the first party opposite party in both the cases is that the record can be called for by the Sessions Judge or the District Magistrate under Section 435, of the proceedings in the inferior court. The Additional District Magistrate is not superior to that of the Magistrate First Class and as such he has no power under Section 435, Criminal P.C. to call for the record of the proceedings pending before the Magistrate 1st Class and to refer the same to the High Court for final orders. For the petitioner first party in both the cases reliance is placed on Section 10, Criminal Procedure Code. Section 10(1) provides that in every district outside the presidency-towns the State Government shall appoint a Magistrate of the first class, who shall be called the District Magistrate. Sub-section (2) of Section 10 says that the State Government may appoint any Magistrate of the first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code or under any other law for the time being in force, as the State Government may direct. Sub-section (3) of Section 10 provides that for the purposes of Sections 192, Sub-section (1), 407. Sub-section (2) and 528, Sub-sections (2) and (3) such Additional District Magistrate shall be deemed to be subordinate to the District Magistrate.

Section 17 lays down that all Magistrates appointed under Sections 12, 13 and 14, and all Benches constituted under Section 15, shall be subordinate to the District Magistrate. The argument of the opposite party is that the court of the Magistrate first class is inferior to that of the District Magistrate by virtue of Section 17. As Section 17 does not make an additional District Magistrate superior to the Magistrate of the First Class, it cannot be said that the court of the Magistrate first class is inferior to that of the Additional District Magistrate. The Additional District Magistrate is also a Magistrate first class. The contention of the petitioner is that the Additional District Magisrate while acting under Section 435 exercises the powers of the District Magistrate by virtue of Section 10(2) and as such the court of the Magistrate would be deemed to be a court inferior to that of the Additional District Magistrate. Section 435 expressly confers the power to call for the record of the inferior court on the Sessions Judge and the District Judge. By virtue of Section 10(2) the Additional District Magistrate exercises the power of the District Magistrate under Section 435 and thus the courts of Magistrates are inferior to him for the purposes of Section 435, Criminal Procedure Code.

5. At this stage it is convenient to refer to the cases cited at the bar.

6. In the case of 'Nobin Krishto Mukharjee v. Russick Lall Laha' reported in ILR 10 Cal 268 it was held that the words 'inferior Criminal Court' in Section 435 of the Criminal Procedure Code mean, inferior so far as regards the particular matter in respect to which the superior Court is asked to exercise its revisional jurisdiction. In the case of 'Krishnaji Vithal v. Emperor' reported in AIR 1949 Bom 29, an accused was tried with a jury by a Judge of the High Court on the Original Criminal Side of the High Court, The accused was discharged in respect of an offence under Section 307, Penal Code, but agreeing with the verdict of the jury the Judge found him guilty under Section 286, Penal Code. An application in revision against the order of the Judge was made before a Bench of the High Court and the point taken was that the single Judge of the High Court was not an inferior court to a Bench and thus the Bench had no jurisdiction under Section 435, Criminal Procedure Code to entertain the revision. It Was held by the Bench of the High Court by Chief Justice Chagla and Bhagawati,. J. that the word 'inferior' in Section 435, Criminal Procedure Code did not carry with it any stigma or any suggestion that the Court is under the administrative orders of the Superior Court. Inferior Criminal Court only means judicially inferior to the High Court and as the appeal lay from the decision of the single Judge to the Bench for the purposes of Section 435, Criminal Procedure Code, the court of the single Judge was inferior to the Bench.

In the case of 'Opendro Nath Ghose v. Dukhini Bewa reported in ILR 12 Cal 473 (FB) it was held that the Magistrate of the District is competent, under Section 435, Criminal Procedure Code, to call for and deal with the record of any proceeding before any Magistrate of whatever class in his own District. Section 17, Criminal Procedure Code was referred to. Under Section 17 all Magistrates are subordinate to the District Magistrate. A Full Bench held that according to the ordinary meaning of the word 'inferior' there could be no question but that all subordinates are inferior to the authority to which they are subordinate, although inferiors are not necessarily subordinates.

7. Reliance is placed by the opposite parties on the case of 'Prabhulal Rarnlal v. Emperor' reported in AIR 1944 Nag. '84. The matter came up before the Nagpur High Court on an application under Section 491, Criminal Procedure Code. By an order issued by the Additional District Magistrate under Rule 26 of the Defence of India Rules, the applicant was detained. The detenue contended before the High Court that the notification issued by the Political and Military Department did not authorise an Additional District Magistrate to exercise the powers of the Provincial Government under Rule 26(5) of the Defence of India Rules. This contention was accepted. It was held that the power of the District Magistrate which the Additional District Magistrate could exercise under Section 10(2), Criminal Procedure Code, did not include the power to issue an order under Rule 26. The question which was posed by the court was -whether the Additional District Magistrate could simply on the strength of the notification exercise the powers which were conferred not on the Additional District Magistrate but on the District Magistrate by the Political and Military Department - and the answer given was in the negative.

This decision is based on the interpretation of the provisions of the Defence of India Act. It was held upon the interpretation of the provisions of' the Defence of India Act that primarily it was the Provincial Government which was entrusted to issue an order under Rule 26. Under Section 2(5) of the Defence of India Act power had been given to the Provincial Government to delegate its powers to an officer and when the State Government delegated that power to the District Magistrate, no further delegation through any other channel, that is, Section 10(2), Criminal Procedure Code was permissible. Section 10(2), Criminal Procedure Code which authorises the Additional District Magistrate to exercise all the powers of the District Magistrate under any other law, clearly would not authorise an Additional District Magistrate to exercise the District Magistrate's power under some special law which enacted that the District Magistrate alone and no other person or authority would be empowered to do a certain Act. It was held that the District Magistrate was a persona designata and by necessary implication when the rules permitted the delegation of power by the,'Provincial Government to any officer, it excluded the authority other than the authority to which the powers have been delegated to act under Rule 26.

This case was followed in the case of B. Thatayya v. G. Basavayya reported in : AIR1953Mad956 . In this case a first class Magistrate had filed a complaint under Section 188, Indian Penal Code for the disobedience of his order under Section 144, Criminal Procedure Code which was sought to be withdrawn by the Additional District Magistrate. It was held that the first class Magistrate was not subordinate to the Additional District Magistrate and as such the Additional District Magistrate-had no power to withdraw the complaint fled by the first class Magistrate. These two cases therefore in -my opinion are different on the facts.

8. 'Reference may be made to the case of 'Central Talkies Ltd., Kanpur v. Dwarka Prasad' reported in : 1961CriLJ740 . The question which. came up for decision before their Lordships of the Supreme Court was whether the Additional District Magistrate who has been appointed as such by a notification whereunder he was invested with, all the power of the District Magistrate under the Criminal Procedure Code as well as any other law for the time being in force, is competent to deal with an application under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act for permission to file a civil suit without special authorisation from the District Magistrate. It was held that the District Magistrate mentioned in Section 3 of the U.P. Act was not a persona designata and by virtue of Section 10(2), Criminal Procedure Code, the Additional District Magistrate was authorised to act under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Act.

9. Section 435, Criminal Procedure Code gives power to the District Magistrate to call for the record of the inferior courts. The power which is exercised by the District Magistrate can be exercised by the Additional District Magistrate under Section 10(2). The Additional District Magistrate was appointed under Section 10(2), Criminal Procedure Code and invested with all the powers of the District Magistrate under the Code. He thus when acting under Section 435, Criminal Procedure Code, would be equated with the District Magistrate for all purposes including the purposes of calling for the record. Thus the courts which are inferior to the District Magistrate, will be regarded as inferior to the Additional District Magistrate. The preliminary objection therefore, must fail.

10. With regard to Criminal Reference No. 18/61 the Magistrate clearly found that the first party got khas possession on the suit land on 25th April 1960. On a portion of dag No. 27 the first party grew Aus paddy and the riot took place. The first party thereafter grew Sali paddy over the disputed land and a portion thereof was peacefully reaped. The Magistrate also found that the second party has come with a case that they have been in actual physical possession of the land. There is a categorical finding by the Magistrate on consideration of the evidence that the first party was in possession. There does not appear to be any question of law arising out of the order of the Magistrate; nor can it be said that there was no proper inquiry by the Magistrate. There is thus no merit in the reference and it is accordingly rejected.

11. As to Criminal Reference No. 25/61 as has been pointed out by the Additional District Magistrate, Ghanashyam Das second party is admitted to be in possession till May, 1960 and after that the land was forcibly occupied. The first party took possession on 13th May, 1960 and then ploughed and left the place during the time of disturbance. The Magistrate has said in his order that formerly the land was in possession of Ghanashyam Das. It was sold in May, 1960 and possession was also given. The first party was granted mutation on the basis of this deed. After May, 1960 it does not appear that. Ghanashyam Das was in possession of this disputed land. He does not find when actually the first party was dispossessed. In the absence of any clear findings that the dispossession took place within two months of the order, no order could be passed in favour of the first party by the Magistrate. There is no clear finding by the Magistrate on what date the first party was actually dispossessed. He has calculated the date on his own personal knowledge that the (disturbance took place in the second week of July, 1960. This reference is accordingly accepted and the order of the Magistrate is set aside as recommended by the Additional District Magistrate.

S.K. Dutta, J.

12. I agree.


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