P.K. Goswami, C.J.
1. This rule was obtained for quashing a final order of the Magistrate, First Class, Judicial, Dibrugarh under Lakhimpur District, passed by him on 26th July, 1968 at the conclusion of a proceeding Under Section 145, Criminal Procedure Code.
2. The petitioner, who is the first party, filed an application Under Section 145, Criminal Procedure Code, on 13th May, 1967 alleging that he was in exclusive possession of the disputed land and that three days earlier the second party along with his ploughmen wanted to forcibly plough the same, which caused a breach of the peace. The second party resisted the claim and, after consideration of the entire evidence, the learned Magistrate declared that the second party was entitled to possession of the land until evicted in due course of law.
3. Mr. P. Choudhuri, the learned Counsel for the petitioner, raised a question of jurisdiction of the learned Magistrate and he submits that the entire proceeding is void ab initio as the learned Magistrate was not competent to dispose of the proceeding Under Section 145 of the Code of Criminal Procedure.
4. The learned Counsel submits that by a Notification of the Government dated 8th January, 1964, there has been an allocation of powers under the Code of Criminal Procedure between the Judicial Magistrates and the Executive Magistrates, and according to the Schedule of that Notification, executive magistrates are empowered to deal with a case Under Section 145, Cr.PC, only at the stage of initiating the proceeding and attach the property. He adds that judicial magistrates have not been allocated with functions to exercise powers Under Section 145, Cr.PC Therefore, there is a lacuna in the notification and the court cannot supply the omission and allow the judicial magistrates to exercise powers Under Section 145, Criminal Procedure Code. The learned Advocate-General, Assam, in opposing this revision application, resists the contention of Mr. Choudhuri and submits that the aforesaid notification of 8th January, 1964 is constitutionally valid and the same is not open to any valid legal objection. He further submits that powers under the Code of Criminal Procedure are not taken away under the provisions of this notification.
5. It may be useful to quote the notification:
Shillong, the 8th January, 1964 No. AAA. 52/61/219: In exercise of the powers conferred by Article 237 of the Constitution of India, the Governor of Assam is pleased to direct that some Magistrates, the number of which will be determined from time to time in consultation with the High Court will be earmarked for doing the judicial work as defined in the Schedule below exclusively, in such districts as may hereinafter be notified and they will for that purpose, be called Judicial Magistrates.
2. At the initial stage and until an enlarged cadre of Assam Judicial Service is constituted, the Judicial Magistrates will be appointed from the members of the A. C. S. Class I who will be allotted by Government for the purpose. These officers so allotted will hereafter be under the administrative control of the High Court in respect of transfer, posting, etc., but in all disciplinary matter, the Government will pass orders in consultation with the High Court.
3. The Scheme will come into operation with effect from 26th January, 1964, only in the districts of Kamrup and Lakhimpur.
Judicial Magistrates Executive Magistrates Concurrent
Sections Sections Sections
16, 17(4), 29(B), 106, 164, 45(3), 107, 127, 144, 145, 146 17(1), 17(2), 42, 44, 45(1), 60-
190(1) (a), 190(1) (b), 190(2), and 147. (These three sections 65,68-105,108 126A, 153(2)
200-265, 346(1), 430, 435-438, at stage of innisting proceed 155,156(3), 158, 159, 165, 168,
488, 515 and 581(1). ings and attaching property) 169, 170, 172, 190(1)(c), 192,
167, 174, 176, 196(A), 196(B) Second Paragraph of 337 (1)
326, Ist Paragraph of 337 (1) 388, 387, 503, 506, 528(2), (3)
and 492(2) and (4), 549(2)552 and and 561 (2)
There are certain Explanatory Notes to the notification, which we need not quote. This notification has been issued by the Governor under Article 237 of the Constitution, which may be quoted:
The Governor may by public notification direct that the foregoing provisions of this Chapter and any rules made thereunder shall with effect from such date as may be fixed by him in that behalf apply in relation to any class or classes of magistrates in the State as they apply in relation to persons appointed to the judicial service of the State subject to such exceptions and modifications as may be specified in the notification.
The above notification is annexed as Schedule 'C under Rule 13 (6) of the Assam Judicial Service Rules, 1967, hereinafter called 'the Rules1. Rule 13 (6) of the Rules reads as follows:
The Judicial Magistrate shall ordinarily exercise powers and functions within the frame-work of the Scheme as given in Schedule 'C appended to these Rules.
6. According to Mr. Choudhuri, after the Judiciary has been separated from the Executive, 'Judicial Magistrate' under Rule 2 (g) of the Rules means the Magistrate empowered to exercise jurisdiction according to the Scheme notified under Government Notification No. AAA52/61/219 dated 8th January 1964 under Article 237 of the Constitution, and under Rule 2 (h) 'Member of the Service' means the officers appointed or deemed to have been appointed under the provisions of these Rules. The learned Counsel relying on the above provisions read with the notification and the Schedule annexed to it, submits that judicial Magistrates cannot exercise any powers which are not expressly mentioned in Column 1 of the Schedule to the notification. The Assam Judicial Service Rules, 1967. were promulgated by the Governor in exercise of the powers conferred by proviso to Article 309 read with Article 234 of the Constitution of India. It is, therefore, clear that these Rules provide for recruitment of persons other than District Judges to the Judicial Service (Article 234 of the Constitution) and recruitment and conditions of service of persons serving the Slate (Article 309 of the Constitution). These Rules made in exercise of the powers under Article 309 read with Article 234 of the Constitution have nothing to do with conferment of powers on the Magistrates under the Code of Criminal Procedure. Since the Judiciary has been separated from the Executive, before appropriate legislation is made on the subject, it was necessary to make the notification under Article 237 of the Constitution to serve the purpose and for smooth working of the administration of justice during the interregnum.
The source of the power of a Magistrate (Judicial) will have to be gathered from conferment of powers by the State Government under the Code of Criminal Procedure. For example, Under Section 12 the State Government may appoint subordinate magistrates of the first, second or third class in a district outside the Presidency-towns, besides the District Magistrate. Under Section 40 of the Code of Criminal Procedure, whenever any person holding an office in the service of Government who has been invested with any powers under this Code throughout any local area is appointed to an equal or higher office of the same nature, within a like local area under the same State Government, he shall, unless the State Government otherwise directs, or has otherwise directed, exercise the same powers in the local area in which he is appointed. Therefore, if a magistrate has already been appointed by the State Government Under Section 12, Criminal Procedure Code, and was exercising powers of a Magistrate of the first class, he will not cease to have these powers on his becoming judicial magistrate in view of the provisions of Section 40 of the Code of Criminal Procedure, unless his powers have been withdrawn by an appropriate notification. There is, therefore, no substance in the contention that because Schedule 'C does not expressly confer, the powers Under Section 145 of the Code of Criminal Procedure on the Judicial Magistrate, he will not be able to exercise powers as a First Class Magistrate, which have been duly conferred on him Under Section 12 of the Code, and, which, in absence of an appropriate notification, Under Section 40. he will continue to exercise while in service of the State Government.
The notification in Schedule 'C should not be looked upon as one conferring powers under the Code of Criminal Procedure. This notification under Article 237 neither confers powers under the Code, nor has it taken away powers from the judicial magistrates, which they are competent to exercise under the Code of Criminal Procedure. Article 237 occurs in Chapter VI of Part VI of the Constitution. That Article, alone with Articles 233 to 236, appears under the heading 'Subordinate Courts'. While Article 233 relates to appointment of District Judges, Article 234 to persons of the judicial service of a State other than District Judges. Article 235 deals with control over subordinate courts and Article 236 is the interpretation clause. There is nothing in these Articles in Chapter VI to indicate that the Constitution was dealing with conferment of powers of the magistracy. Any notification under Article 237 of the Constitution will only enable bringing of the members of the magistracy, who were earlier under the control of the Government, which includes disciplinary control, to the control of the High Court. It is for that reason that the Rules of Judicial Service which are made under Article 234 of the Constitution are made applicable to such magistrates by virtue of notification under Article 237. Since, prior to the notification, the magistrates were under the control of the Government, in order to achieve the object of separation of Judiciary from the Executive as envisaged under Article 50 of the Constitution, it was necessary to make appropriate notification under Article 237 to part with the control of such of the magistracy as would from the date of separation of the Judiciary from the Executive would be assigned by the State Government to be in judicial service. The division of work between the executive branch and the judicial branch, as noted in the schedule of the notification, is, as stated earlier, for the real purpose of achieving the aim of placing judicial magistrates under the control of the High Court and not with the idea of derogating them of their powers which they are authorised to exercise under the Code of Criminal Procedure. The notification does not seek to amend the Code of Criminal Procedure, but has to be read in harmony with the provisions of the Criminal Procedure Code and not in derogation of the same. The very fact that there is no provision in the allocation of powers for completing the proceeding Under Section 145, Criminal Procedure Code, after initiation and attachment of the property would go to show that the provisions of the Code of Criminal Procedure would apply and operate, and it will be open to the judicial magistrate exercising first class power to finally conclude the proceedings in accordance with law. The omission of Section 145 in Column 1 of the Schedule is therefore not at all significant and is not tantamount to ousting jurisdiction of a judicial magistrate, first class, from exercising powers Under Section 145 of the Code of Criminal Procedure. The powers exercisable by the magistracy, judicial or executive, will depend upon conferment of these powers under the Code of Criminal Procedure de hors the provisions of the notification dated 8th January, 1964. Because of the omission of Section 145, Cr.PC under column 1, or column 2, or even under column 3 in the schedule for completing the proceeding by any magistrate, these proceedings will not hang in the air or get inevitably shelved on the mere drawing up of the preliminary order. The express restriction under column 2, which is not questioned before us, is upon the executive magistrates to complete the proceeding and not upon the judicial magistrates duly empowered under the Code. It is reasonable to suppose that the executive magistrates will comply with the provisions of the scheme envisaged in the Schedule 'C and there will, therefore, be no difficulty nor confusion in administration of justice.
7. It is not denied in this case that the learned Magistrate had the authority to exercise powers of a magistrate of the first class under the Code. There is, therefore, no error in his disposing of the proceeding Under Section 145. Cr.PC The order is therefore not open to any valid objection under the law.
8. The petition fails and is dismissed and the Rule is discharged.
M.C. Pathak, J.
9. I agree.