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Dwarika Nath Roy and ors. Vs. Babar Ali and ors. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantDwarika Nath Roy and ors.
RespondentBabar Ali and ors.
Excerpt:
- - sri goswami as additional district magistrate (judicial), nowgong'.since the point was not precisely taken on behalf of the state, the court observed as follows: the then registrar, it appears, somehow, thought that he would discharge his duty fully by bringing to the notice of the earlier division bench only the two notifications dated 19th and 26th september, 1968, while leaving out an important document, like annexure 'e' dated 24th september, 1968. the present registrar, under orders of the court, has produced all the relevant correspondence and orders from the high court records by swearing an affidavit......were made by the learned sessions judge, nowgong, recommending that the orders passed by sri r. m. goswami, additional district magistrate, nowgong, be quashed, in view of the unreported division bench decision of this court in criminal misc. case no. 479 of 1969 (assam) disposed of on 3 10-1969. it was held in that decision that sri r. m. goswami 'had no jurisdiction at nowgong to exercise any magisterial power there'.2. a number of petitions has been made in this court challenging the orders passed by the additional magistrate in question. as the point did not appear to be irec from some doubt these references are placed before this full bench for consideration of the entire matter.3. the principal question before this full bench is whether sri r. m. goswami, additional district.....
Judgment:

P.K. Goswami, C.J.

1. The above two references were made by the learned Sessions Judge, Nowgong, recommending that the orders passed by Sri R. M. Goswami, Additional District Magistrate, Nowgong, be quashed, in view of the unreported Division Bench decision of this Court in Criminal Misc. Case No. 479 of 1969 (Assam) disposed of on 3 10-1969. It was held in that decision that Sri R. M. Goswami 'had no jurisdiction at Nowgong to exercise any magisterial power there'.

2. A number of petitions has been made in this Court challenging the orders passed by the Additional Magistrate in question. As the point did not appear to be irec from some doubt these references are placed before this Full Bench for consideration of the entire matter.

3. The principal question before this Full Bench is whether Sri R. M. Goswami, Additional District Magistrate, had jurisdiction at Nowgong to exercise any magisterial powers there.

4. On 12th September, 1968, the State Government suggested to the High Court the name of Sri R. M. Goswami, Sub-Divisional Officer, Nalbari, who was due for promotion to senior scale of A. C. S. I. (equivalent to Additional District Magistrate) for consideration for appointment as Additional District Magistrate (J) and his character roll was also sent to the High Court along with this proposal. The High Court accepted the proposal by telegram dated 19-9-1968 and also simultaneously on that very day sent a notification to the Government which may be quoted:

No..-. HC. VII-I/68/8853/A. On his services being placed at the disposal of the Hon'ble High Court, Shri Rajendra Mohan Goswami, A. C. S., is appointed as Additional District Magistrate (Judicial), Nowgong with effect from the date of his joining vide Shri Sudhish Kumar Senapati.

This cancels the High Court's Notification No. HC. VIM/68/7435A dated 26-7-1968.

A copy of this Notification was forwarded to the Chief Secretary, the Law Secretary, Accountant-General, Sri. R. M. Goswami and amongst others to the Superintendent, Assam Government Press, Shillong for favour of publication in the Assam Gazette. The Government in its turn passed orders on 24th September, 1968 and communicated by telegram to the officers concerned in the following terms:

(Contd. in column 2)

EXPRESS TELEGRAM STATE

Shri R. M. Shri N. N. Narzari Deputy Controller

Sub. divisional and Additional Sadar Sub divisional

Nalbari Jorhat.

AAA468 P You are promoted to ACS Senior Grade and transferred posted as ADM (J) Nowgong AAA Please take necessary steps to join your new assignment soon AAA Formal notification will issue due course AAA addressed Shri Goswami Sub-Divisional Nalbari Repeated Shri N. N. Narzari Deputy Controller and Additional Sadar Sub-divisional Jorhat with request to proceed to Nalbari after handing over charge to other Sadar Sub-divisional for taking over charge of sub-divisional from Shri Goswami. Assam.

A confirmatory copy of this telegram was sent fay post the same day to the Officers and also amongst others to the Registrar, High Court, by order of tht> Governor. This telegram is marked ab Annexure 'E' in the records. Then followed the Notification dated 26th September, 1968 in the following terms:

No. AAA 4/68/Pt. II:— On relief, Shri R. M. Goswami, A. C. S., Sub-Divisional Officer, Nalbari is temporarily and until further orders promoted to officiate in the Senior Grade of A. C. S. I., with effect from the date he assumes charge of the post of Additional District Magistrate (J), Nowgong, as already notified by the Hon'ble High Court vide notification No. HC. VII-I 68/A dated 19-9-1968.

The services of Shri R. M. Goswami, A. C. S., are placed at the disposal of the Hon'ble High Court with immediate effect, for appointment temporarily and until further orders as Additional District Magistrate (J), Nowgong.

5. In the above unreported deci- sion, a concession was made by the learned Government Advocate that 'that there is no Government notification appointing. Sri Goswami as Additional District Magistrate (Judicial), Nowgong'. Since the point was not precisely taken on behalf of the State, the Court observed as follows:

Sri Goswami who is admittedly a member of the Assam Civil Service, could be appointed as an Additional District Magistrate at Nowgong Under Section 10 (2) of the Criminal Procedure Code by the Government. This was also not done, Sri Goswami was not previously posted at Nowgong. Hence he had no jurisdiction at Nowgong to exercise any magisterial power there.

In this view of the matter, the entire proceedings must be quashed.....

On a perusal of the records and also from the Judgment, it appears that there was only one annexure filed by the petitioner in that case, namely the Notifies- ion of the High Court dated 19-9-1968, which we have quoted above, and the Court dealt with that Notification only. The Registrar, High Court also produced the same along with ihe notification dated 26th September, 1968, which also we have quoted above. The matter therefore turned on the Assam Judicial Service Rules. It was not even denied by the State there that the officer 'was never appointed as an Additional District Magistrate under the aforesaid rule by the Government.' Since under Rule 5 (4) (b) of the Assam Judicial Service Rules, such an officer has to be appointed by the Governor either by promotion from Grade III in consultation with the High Court or by direct recruitment on the concession made that there was no such notification of the Government under the Rules clinched the issue in that case. This position is unexceptionable under the Rules. The then Registrar, it appears, somehow, thought that he would discharge his duty fully by bringing to the notice of the earlier Division Bench only the two notifications dated 19th and 26th September, 1968, while leaving out an important document, like Annexure 'E' dated 24th September, 1968. The present Registrar, under orders of the Court, has produced all the relevant correspondence and orders from the High Court records by swearing an affidavit. We now find from Annexure 'E', quoted above, that Sri R. M. Goswami 'was transferred and posted as Additional District Magistrate (Judicial), Nowgong'. This order of the State Government is in terms of Section 10 (2) of the Code of Criminal Procedure and we see from Annexure 'F' that Sri R. M. oswami was invested by Government with the powers of a Magistrate of the first class as early as 2nd April, 1958. When, therefore, in pursuance of the ord(:r of the Government dated 24-9-1968 (Annexure 'E'), Sri R. M. Goswami joined as Additional District Magistrate (Judicial) at Nowgong, he was authorised under the law to exercise powers of Additional District Magistrate. The conferment of powers is within the competence of the State Government and that has been done in this case in accordance with law. There is, therefore, no error of jurisdiction in Sri Goswami exercising magisterial powers at Nowgong from 24th September, 1968. The exercise of powers under the Code of Criminal Procedure by Sri Goswami, therefore, cannot be questioned.

6. The references are accordingly rejected. The cases will go back to the learned Sessions Judge for disposal of the revision applications before him on the merits in accordance with law.

D.M. Sen, J.

7. I agree.

M.C. Pathak J.

8. I agree.


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