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Khimchand Narottam Bhavsar Complainant Vs. Devkaran Mulji - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in115Ind.Cas.387
AppellantKhimchand Narottam Bhavsar Complainant
RespondentDevkaran Mulji
Excerpt:
.....be tenants of the..........without the leave of the court involves an addition to the provisions of section 197 of the code of criminal procedure. the case of santok chand v. sugan chand 46 ind. cas. 836 19 cr. l.j. 820 proceeds on principles deducible from the english cases and not on any express provision of law. this case proceeded on its own facts as the receiver was there charged with criminal breach of trust in respect of the very property which had been placed in his possession by the court. in the present case the receiver, though put in possession of the land in dispute by the court, can not be regarded as authorized to commit offences of the nature complained of, by virtue of his possession, as his duty was to proceed by due course of law in the case of dispute between him and persons claiming to.....
Judgment:

Patkar, J.

1. The complainant filed two informations in the Court of the learned Presidency Magistrate, Sixth Court, charging opponent No. 1, the Receiver appointed by the High Court in a suit on the Original Side, and other persons. The complainant applied to the Chamber Judge, Mirza, J., for sanction to prosecute the Receiver. It is said that Mirza, J., returned the application orally giving his opinion that the sanction asked for was not necessary. On August 30, 1927, the Magistrate refused to entertain the complaints on the ground that accused No.1 was the Receiver (appointed by the High Court) of Motishaw's Wadi including the stable in question and accused Nos. 2, 3 and 4 were alleged to have only acted under the order of accused No. 1, the Receiver, and relying on the decision in the case of Santok Chand v. Sugan Chand 46 Ind. Cas. 836 held that no action could be taken in this matter till the complainant first obtained the leave of the High Court for prosecuting the Receiver.

2. It is urged on behalf of the complainant that though sanction was necessary under the old Section 197 of the Criminal Procedure Code, no sanction was necessary under the amended section. Section 197 of the old Criminal Procedure Code referred to a public servant not removeable from his office without the sanction of the Government of India or the Local Government, and would not be applicable to a Receiver appointed by the High Court. The amended Section 197 does not also apply to a Receiver appointed by the High Court in a civil suit on the Original Side. Reliance is placed on behalf of the accused on the decision in the case of Santok Chand v. Sugan Chand 46 Ind. Cas. 836 where it was held that a Receiver appointed by the High Court, who has, under its order, taken possession of property, cannot be prosecuted for criminal breach of trust in respect of the same without first obtaining the leave of the Court. There is no specific provision of law which requires leave of the Court as a condition precedent to the prosecution of a Receiver appointed by the High Court. In that case the principle guiding the Court of Chancery in England, laid down by Lord Brougham in Aston v. Heron (1834) 2 M. & K. 390 was made the basis of the decision. The case of Nagendra Nath v. Jogendra Nath 15 Ind. Cas. 491 was distinguished on the ground that the offence committed, namely, defamation, had no particular relation to the Receiver's official conduct or position.

3. With regard to the institution of a civil suit against the Receiver, it was held by Pratt, J., in Jamshedji v. Husseinbhai Ahmedbhai 56 Ind. Cas. 424 that in the case of a suit against, a Receiver there was no statutory provision requiring the leave of the Court, and that the defect could be cured by leave subsequently granted if there was no bar to the institution of the suit, that is, to the jurisdiction of the Court to admit the plaint. The same view was taken in the cases of Rustomjee Dhunjibhai Sethna, Frederic Gaebele 51 Ind Cas 486 and Ammakutty v. Manavikraman 59 Ind Cas. 568 . See also Woodroffe on Receiver, pages 86 and 89. There is no statutory provision requiring a party to take leave of the Court to sue the Receiver. The rule is based on the ground that the Receiver is an officer of the Court and the authority of the Court is not to be obstructed or brought into contempt by suits intended to interfere with the possession of the Court. Any threatened proceedings against a Receiver in respect of trespass or wrongful seizure of goods instituted without leave of the Court will be restrained unless the Court is satisfied that the Receiver has acted in excess of his authority. See Halsbury's Laws of England Vol. XXIV, page 388.

4. With regard to criminal prosecution the matter stands on a different footing. Part VI, Chap. XV, cl. B, of the Criminal Procedure Code, lays down the conditions requisite for institution of proceedings. Sections 195, 196 A, 196 B, 197, 198, 199 and 199 A lay down the provisions as to when the Court shall take cognizance of the offences specified in those sections. There is no provision in the Criminal Procedure Code requiring the leave of the Court to prosecute a Receiver before taking criminal proceedings against him. It may be desirable to bring to the notice of the Court, which appointed the Receiver, the offence committed by the Receiver in execution of the orders of the Court and obtain the leave of the Court before prosecution. But we think that we shall be trespassing on the functions of the Legislature if we were to hold that the leave of the Civil Court is a condition precedent to the Magistrate's taking cognizance of a complaint against the Receiver appointed by the Court. A criminal offence by a Receiver would be clearly in respect of an act committed in excess of the authority of the Receiver appointed by a Civil Court, and the reason of the rule requiring leave of the Court before suing the Receiver would not apply to a criminal prosecution against the Receiver, for violation of the Criminal Law. In Dunne v. Kumar Chandra Kisore 7 C.W.N. 390 which was followed in Fink v. Corporation of Calcutta 30 C. 721it was held that a Receiver appointed by the High Court could not be proceeded against under Section 145, Criminal Procedure Code, merely in his capacity of a Receiver, and a Magistrate had no jurisdiction to interfere with him in respect of his possession without the sanction of the Court on the ground that the possession of the Receiver wan possession of the Court. But the Calcutta High Court in Nagendra Nath Srimoney v. Jogendra Nath Srimoney 15 Ind. Cas. 491 held that the sanction of the Court appointing a Receiver was not necessary in order to proceed against him for a breach of the ordinary Criminal Law of the country. In Krishna Lal v. Profulla Kumar Dhar 60 Ind. Cas. 791 it was held that where an estate was entrusted to an administrator by the Court in the exercise of its intestate jurisdiction, a complaint for criminal breach of trust in respect of items included in the accounts filed in Court could not be entertained without the sanction of the Court on the ground that the inventory and accounts were filed by him in the High Court, and the exhibition of a false inventory would constitute an offence under Section 176, Indian Penal Code, and the sanction of the Court was necessary under Section 195 of the Criminal Procedure Code. In Santok Chand v. Sugan Chand 46 Ind. Cas. 836 leave of the Court was held necessary for the prosecution of a Receiver for criminal breach of trust on the ground that the property was entrusted to the Receiver by the Court and not by the complainants.

5. In the present case, an application was made to Mirza, J. for leave to prosecute the Receiver, but the learned Judge was of opinion that leave was not necessary. It would have been better if the complainant in this case had made a written application and obtained a written order thereon. We are not aware of any provisions of the law which requires leave or sanction of the Court before prosecuting a Receiver. In the present case, the offences alleged against the Receiver are said to have been committed by acts in excess of the authority of the Receiver, and I think the Presidency Magistrate, Sixth Court, erred in not taking cognizance of the complaints on the ground that accused No. 1 was a Receiver appointed by the High Court, and no written leave of the Court sanctioning the prosecution was produced before it.

6. I would, therefore, make the Rule absolute, set aside the order of the learned Magistrate, and direct him to entertain the complaints and proceed with them according to law

Baker, J.

7. I agree. To hold that the Receiver cannot be prosecuted without the leave of the Court involves an addition to the provisions of Section 197 of the Code of Criminal Procedure. The case of Santok Chand v. Sugan Chand 46 Ind. Cas. 836 19 Cr. L.J. 820 proceeds on principles deducible from the English cases and not on any express provision of law. This case proceeded on its own facts as the Receiver was there charged with criminal breach of trust in respect of the very property which had been placed in his possession by the Court. In the present case the Receiver, though put in possession of the land in dispute by the Court, can not be regarded as authorized to commit offences of the nature complained of, by virtue of his possession, as his duty was to proceed by due course of law in the case of dispute between him and persons claiming to be tenants of the property. It would, I think, lead to inconvenient results if we were to hold that the sanction of the Court was necessary before the prosecution in respect of the alleged offences. I, therefore, concur in the order proposed.


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