Skip to content


Ramchandra Nagoji Kandam Vs. State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Revn. Appln. No. 358 of 1965
Judge
Reported inAIR1967Bom41; (1966)68BOMLR233; 1967CriLJ163; ILR1966Bom756
ActsCode of Criminal Procedure (CrPC) , 1898
AppellantRamchandra Nagoji Kandam
RespondentState of Maharashtra
Appellant AdvocateD.B. Kode, Adv.
Respondent AdvocateBhal Desai, ;R.G. Samant, Advs. and ;V.T. Gambhirwala, Asst. Govt. Pleader
Excerpt:
a) it was ruled that sub-divisional magistrate acting under section 145 of the criminal procedure code, 1898 is not inferior to criminal court as specified by section 435 (1) of the act - it was also ruled that revision to the order of sub-divisional magistrate lies to the district magistrate and not to the sessions judge;b) it was ruled that landlord had the right to evict the dependents of the tenant, who use to live with him and section 12 of the bombay rents, hotel and lodging house rates control act, 1947 imposed certain disability on the landlord in the matter of eviction of tenant - - 2 contends that the view taken by the learned sessions judge is not correct, inasmuch as the judgment of the division bench in the abovementioned case clearly leaves the material question open. it..........4(m) of criminal procedure code. he also relies on the fact that under s. 145 criminal procedure code, a magistrate is entitled to record evidence on oath. this, according to mr. kode, indicated that a magistrate acting under s. 145 is also a criminal court. what goes on before a magistrate under s. 145 may be a judicial proceeding for certain purpose, but that would not, in my opinion, constitute such a magistrate an inferior criminal court, as contemplated by s. 435(1) criminal p. c. the definition would be material where that expression is used in a section. it is well-known that for certain purposes even the proceedings which are not proceedings of a court of law are deemed to be judicial proceedings. that does not constitute the authorities before whom such proceedings go on as.....
Judgment:
ORDER

(1) This revision application arises out of proceedings started under section 145 of Criminal Procedure Code. Sub-Divisional Magistrate, Chiplun, found that Party No. 1 was in possession at the material time and passed the consequential order. Against this order, Party No. 2 preferred a revision application to the Sessions Court, Ratnagiri. The learned Sessions Judge held that in view of the decision of this Court viz. Dr. Lallubhai Bhatt v. State of Bombay, he had no jurisdiction to entertain the above-mentioned revision application.

(2) In this revision application, Mr. Kode for the petitioner, i.e. party No. 2 contends that the view taken by the learned Sessions Judge is not correct, inasmuch as the judgment of the Division Bench in the abovementioned case clearly leaves the material question open. According to Mr. Kode, the material question in this case is whether a Sub-Divisional Magistrate acting under S. 145 Cr. P. C. can be said to be an inferior Criminal Court mentioned in S. 435 (1) of Cr. P. C. In the above-mentioned reported decision the learned Chief Justice in his judgment after referring to the question as to whether a proceeding under S. 145 Cr. P. C. is a proceeding entertained by a Criminal Court observes: 'We do not think that it is necessary to decide this question in this case. In view of this observation, I have allowed Mr. Kode to argue that point. Mr Kode submits that a Sub-Divisional Magistrate acting under S. 145 Cr. P.C. is an inferior Criminal Court contemplated by Section 435(1) of Cr. P. C. Mr. Kode refers to the heading of chapter II of Criminal Procedure Code, which is: 'of the Constitution of Criminal Courts and offices'. He then refers to Ss. 6-A and points out that while enumerating classes of Criminal Courts, Sub-Divisional Magistrates are not excluded, on the other hand the expression used is 'Courts of Magistrate' and that according to Mr. Kode, indicated that even Sub-divisional Magistrates, though they are grouped under the heading 'Executive magistrates' are inferior Criminal Courts contemplated by Section 435(1). I am unable to accept this contention. It is true that the heading of Chapter II shows that the chapter deals with the constitution of Criminal Courts. All the same, S. 6 makes it quite clear that after the amendment by Bombay Act 23 of 1951, which separated the judiciary from the executive, there are only two classes of Courts, viz. Courts of Sessions and Courts of Magistrates. It is pertinent to note that S. 6-A does not use the expression 'Courts of Magistrates': it uses the expression 'classes of Magistrates'. In my opinion, S. 6-A does not deal with Criminal Courts, but it deals with only classes of Magistrates. Merely because an officer is designated as a Magistrate, it does not necessarily follow that he is constituted an inferior Criminal Court as contemplated by Section 435(1), unless there is some specific provision to indicate that. Mr. Kode then refers to Ss. 17 and 17-A. Section 17, it is important to note, uses the expression 'Judicial Magistrates' as contrasted with the expression 'Executive Magistrates' used in s. 17-A. that, in my opinion, negatives the contention advanced by Mr,. Kode. Section 17 lays down that all Judicial Magistrates shall be subordinate to the sessions Judge, who shall distribute business amongst them. Section 17-A lays down that all Executive Magistrates appointed under s. 13 or S. 14 shall be subordinate to the District Magistrate. the wording of s. 17-A makes it quite clear that the Code does make a clear distinction between Judicial Magistrates who preside over inferior Criminal Courts as contemplated by S. 435(1) and Executive magistrates who are assigned some special executive work by some specific provision in the Criminal Procedure Code.

(3) Reference was made to S. 17B also. Mr Kode strongly relies on the expression 'Courts of Magistrates' and contends that this expression would necessarily include even 'Executive Magistrates'. I am unable to accept this contention also. The expression used in S. 17V is 'Courts of Magistrates (including Courts of Presidency Magistrates)'. If Mr. Kode's contention that the expression 'Courts of Magistrates' covers all Magistrates including even the Executive Magistrates is correct, the further expression 'including Courts of Presidency Magistrates' would be redundant. It is a well-known principle of contraction that a statute must be so construed that there is no occasion to attribute redundancy or superfluity to the Legislature. In view of the wording of S. 17-B, it is, in my opinio, clear that the expression 'Courts of Judicial Magistrates' refers only to courts of Judicial Magistrates, it does not include Executive Magistrates. This is made clear by adding the expression 'including Courts of Presidency Magistrates'.

(4) The next material section is S. 435. As pointed out in : AIR1958Bom276 authorises the District Magistrate or a Sub-Divisional Magistrate empowered by the State Government to examine the proceedings before any Subordinate Executive Magistrate. In other words, that sub-section confers revisional powers on the District Magistrate or a Sub-divisional Magistrate specially empowered It is also important to note that prior to the amendment brought about by Bombay Act 23 of 1951, sub-s. (1) of S. 435 included the expression 'District Magistrate' also, but by the said amending Act, that expression is removed and sub-s. (2) is added. That also makes it quite clear that Executive Magistrates are treated separately, they are not treated as Criminal Courts. What is more important is sub-s. (4) of s. 435. This sub-section was added by Bombay Act 39 of 1955, which came into force on 2-1-1956. If there was any doubt, that is completely removed by the addition of sub-s. (4), which empowers the High Court to call for the record and examine the correctness or propriety of the orders passed under Sections 118, 122 and Sections 143 to 145 of Criminal Procedure Code. If as Mr. Kode contends, the expression ' any inferior Criminal Cort' used in sub-s.(1) of S. 435 included even the Executive magistrates acting under Section 118, 122 and 143 to 145, sub-s. (4) would be redundant. The very fact that the Legislature though it necessary to add sub-section (4) to S. 435 indicates that prior to the passing of Bombay Act 39 of 1955, High Court did not have under S. 435(1) the power mentioned in sub-section (4) of s. 435 Mr. Kode referred to S. 435-A, which was added by Bombay Act 39 of 1955. This section must be read with sub-s. (2) of S. 435. S. 435(2) empowers the dist. Magistrate and specially empowered Sub-Divisional Magistrates to direct further enquiry in some matters, but in other matters, i.e., where Executive magistrates act under Sections 118, 122 and 143 to 145, they are required to refer the matter to the High Court, if they find that the order under any of the above mentioned sections, which comes up before them for revision, is not correct and should be reversed or altered. S. 438-A would have no bearing on the question that arises before me.

(5) For reasons indicated above, I am of the view that a Sub-Divisional Magistrate acting under S. 145 of Criminal Procedure Code, is not an inferior Criminal court as contemplated by S. 435(1) of Criminal Procedure Code. Such a proceeding cannot be said to be a proceeding entertained by a Criminal Court.

(6) I may mention here that Justice Dixit has taken a similar view in Criminal Revn. Appln. No. 1338 of 1954 dated 11-2-1955 (Bom). Mr. Kode points out that Justice Dixit has not referred to S. 438-A. As already stated, that however would not make any difference.

(7) Mr. Kode referred to In re, Ramanath : AIR1953Mad953 . Reliance is placed on paras 5 and 6 of the judgment. The learned Judge refers to the Privy Council decision viz. Clarke v. Brojendra Kishore Roy ILR (1912) Cal 953. The observations of the Privy Council relied upon are;

'For the sake of brevity the Code uses the term 'Court' and 'Magistrate' generally if not always, as convertible terms.'

These observations would not help the present petitioner in view of the several amendments brought about by Bombay Act 23 of 1951 and Bombay Act 39 of 1955. Bombay Act 23 of 1951 brought about separation of judiciary and executive, hence the amendments brought about by that Act would have a material bearing.

(8) Mr. Gambhirwala for the State refers to Vedappan Servai v. Perianan Servai ILR 52 Mad 69: AIR 1928 Mad 1108. Reliance is placed on the observations at p. 72. After referring to S. 6 of Criminal Procedure Code, the learned Judge observes;

'The section only means that among the Criminal Courts in British India are magistrates but this does not necessarily mean that the Magistrates are always Courts. It can only mean that when they act judicially they are Criminal Courts. Section 6 is not inconsistent with the idea that Magistrates may sometimes act in an executive and administrative capacity and not as a Court.'

With respect, I agree with these observations. It is the functions carried out by a Magistrate that decide whether he is while discharging those functions acting as a Court or is acting in his executive or administrative capacity.

(9) Mr. Kode referred to the definition of 'Judicial proceeding' in S. 4(m) of Criminal Procedure Code. He also relies on the fact that under S. 145 Criminal Procedure Code, a Magistrate is entitled to record evidence on oath. This, according to Mr. Kode, indicated that a Magistrate acting under S. 145 is also a Criminal Court. What goes on before a Magistrate under s. 145 may be a judicial proceeding for certain purpose, but that would not, in my opinion, constitute such a Magistrate an inferior Criminal Court, as contemplated by S. 435(1) Criminal P. C. The definition would be material where that expression is used in a section. It is well-known that for certain purposes even the proceedings which are not proceedings of a Court of law are deemed to be judicial proceedings. That does not constitute the authorities before whom such proceedings go on as Courts.

(10) For reasons indicated above, I am of the opinion, that the view taken by the learned Sessions Judge that he has no jurisdiction to entertain the revision application before him is correct. The rule is, therefore, discharged. Stay vacated.

(11) The petitioner may if so advised apply to the District Magistrate fro revision of the order which was challenged before the learned Sessions Judge and the District Magistrate shall dispose of the application on merits. The delay is occasioned because of a wrong remedy pursued bona fide by the petitioner on account of a mistaken view of law. Hence this delay need not come in the way of the petitioner. The District Magistrate shall consider the matter on merits.

(12) Application dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //