M.S. Nesargi, J.
1. This is a reference made by Sessions Judge, Bangalore requesting this Court to set aside the order dated 31-1-1974 purported to have been passed by the Sub-Divisional Magistrate, Bangalore Sub-Division, Bangalore in case No. EST/CCA/23/73-74.
2. A few facts leading to this reference may be narrated briefly as follows:
One J. K. Narayana Rao, who is a party to this reference was working as Village Accountant of Gavipur Firka Villages of Bangalore North Taluk. His services were terminated by the Deputy Commissioner, Bangalore District, Bangalore by his order dated 21-7-1973. J. K. Narayana Rao, evaded handing over charge of the records that were with him as Village Accountant. Repeated requests were made to him personally. But even then he did not hand over the relevant records. Notices were issued by the Tahsildar, Bangalore North Taluk. Bangalore calling upon him to hand over charge and the relevant public papers that were in his custody. Narayana Rao did not hand over charge and the papers. It was found that, in the absence of the records that were with Narayana Rao, great harassment, hardship and inconvenience was being caused to the public.
2-A. Under the aforementioned circumstances, the concerned Assistant Commissioner passed the following order as a Sub-Divisional Magistrate, Bangalore Sub-Division, Bangalore because he was also a Sub-Divisional Magistrate:
IN THE COURT OF THE SUB-DIVISIONAL MAGISTRATE BANGALORE SUB-DIVISION, BANGALORE.
CASE No. EST.CCA.23/73-74
Subject : - In the matter of recovery of Government Accounts from Sri T. K. Narayana Rao, Ex-Shanbhogue.
Whereas, the services of Sri T. K. Narayana Rao, Ex. Shanbhogue of Gavipur Firka Village, Bangalore North Taluk has been terminated by the Deputy Commissioner, Bangalore District Bangalore vide termination orders No. HOA.55/72-73 dated 21-7-1973;
Whereas, the said Narayana Rao, though he has been served with the orders of termination, reported to be evading to hand over charge of the Village accounts and repeated personal requests and notices issued by the Tahsildar, Bangalore North Taluk, have had no effect on the said Sri Narayana Rao and whereas, in the absence of such village Accounts, the Public are put to hardship and inconvenience, and
Whereas, it appears to this Court that recovery of these Accounts is very essential in the larger interests of Public Service.
Therefore, I, Narendra Singh, Sub-Divisional Magistrate, Bangalore Sub-Division, Bangalore, hereby order for searching the residence of Sri J. K. Narayana Rao, Ex-Shanbbogue residing at No. 435, 8th Main Road, Hanumanthanagar, Bangalore-18 and any other premises wherein these accounts are suspected to be lodged and secure these accounts as contemplated under Section 96 of the Code of Criminal Procedure, 1898 as amended by Mysore Act 13 of 1965 and Central amendments and further authorise the Sub-Inspector of Police Hanumanthanagar Police Station to execute this order, secure the accounts and hand over them to the Tahsildar, Bangalore North Taluk or any such person who is authorised by the Tahsildar to receive these accounts.
Given under my hand and seal of this Court, this day the 31st January, 1973.
3. J.K. Narayana Rao filed Criminal Revision Petition No. 7 of 1974 in the court of the Sessions Judge, Bangalore and the learned Sessions Judge found that there was all the force in the contention put forward on behalf of J. K. Narayana Rao and therefore, the order of the learned Sub-Divisional Magistrate dated 31-1-1974 excerpted above was not sustainable in law and it was required to be set aside by this Court. He therefore, made this reference.
3-A. Sri T. Venkanna, learned Counsel appearing for J. K. Narayana Rao, supported the reference and pointed out that on the face of it, the order has been passed by the Sub-Divisional Magistrate exercising his powers under Chapter VII of the Code of Criminal Procedure, 1898 (hereinafter referred to as the 'Code') and it is not disputed that no proceeding under the Code was pending and that the recovery of the Government papers said to be lying with Narayana Rao were required in a proceeding pending under the Code. He, on this basis, contended that the Assistant Commissioner who is also the Sub-Divisional Magistrate had no power to issue a search warrant under Chapter VII of the Code. Therefore, the learned Sessions Judge was right in making a reference for setting aside the order passed by the Sub-Divisional Magistrate directing issue of search warrant. The learned State Public Prosecutor contended that though the order purports to have been issued by the Sub-Divisional Magistrate who is also the Assistant Commissioner on the Revenue Side, it must be presumed that it has been issued by an Assistant Commissioner exercising his delegated powers of a Deputy Commissioner under the Karnataka Land Revenue Act, 1964 (hereinafter referred to as the 'Act') and hence the order in question is well-sustained when Section 23 of the Act is looked into and therefore, it is not in the interests of justice necessary to set aside the order.
4. Sri T. Venkanna urged that even if Section 23(1)(b) of the Act is taken into consideration, it would be seen that a reference is made to Chap. VII of the Code, and therefore, the Deputy Commissioners and the Assistant Commissioners would be Magistrates and they can act only as Magistrates under Chapter VII of the Code. Hence, the search warrant issued by the Sub-Divisional Magistrate cannot be sustained and, therefore, the learned Sessions Judge was right in making a reference for setting aside the order of the Sub-Divisional Magistrate.
5. Section 23(1)(b) of the Act reads as follows:
23.(1) : The Deputy Commissioner of his own motion, if the Revenue Officer or other person is or was serving in his Department and district, and upon the application of the Deputy Commissioner of Land Records or the Deputy Commissioner for Settlement, if such officer or person is or was serving in the Survey and Land Records Department in his district, may.
(a) x x x x
(b) issue a search warrant for the purpose of recovering public papers or other property of the State Government and exercise all such powers with respect thereto as may be lawfully exercised by a Magistrate under the provisions of Chapter VII of the Code of Criminal Procedure, 1898.
6. I am given to understand that all the powers exercisable by Deputy Commissioners have been delegated to the Assistant Commissioners by virtue of Section 10 of the Act. Therefore, it is clear that an Assistant Commissioner has also the power to act under Section 23 of the Act.
7. A plain reading of Section 23(1)(b) of the Act shows that the Assistant Commissioner has been invested with the power to issue a search warrant when the persons concerned are serving or were serving in the Revenue Department or under the Deputy Commissioner of Land Records or the Deputy Commissioner for Settlement only when the recovery of public papers or other property of the State Government becomes necessary. Sri Narayana Rao was evidently serving as a Village Accountant and therefore in the Revenue Department. It is undisputed that what are sought to be recovered are public papers which Narayana Rao was supposed to have had as a Village Accountant. Therefore, the necessary ingredients enabling exercise of the power vested in a Deputy Commissioner or an Assistant Commissioner under Section 23(1)(b) of the Act are present in the case on hand. Now the contention of Sri T. Venkanna that by virtue of Section 23(1)(b) a Deputy Commissioner or an Assistant Commissioner becomes a Magistrate exercising powers under Chapter VII of the Code is to be examined.
8. A reading of Section 23(1)(b) of the Act further shows that the power to issue search warrant is vested in the Deputy Commissioners and the Assistant Commissioners not because of the provisions of the Code but because of Section 23(1)(b) of the Act itself. The latter part of Section 23(1)(b) of the Act makes it abundantly clear that in respect of search warrants issued by the Deputy Commissioners or the Assistant Commissioners, the said Deputy Commissioners or the Assistant Commissioners can exercise all the powers that a Magistrate can exercise under Chapter VII of the Code. So what is clear to my mind is that the power to issue search warrants for a limited purpose narrated and discussed in the preceding paragraph is vested in the Deputy Commissioners and the Assistant Commissioners by virtue of Section 23(1)(b) of the Act itself. By Section 23(1)(b) of the Act itself, further power that a Magistrate could exercise, while issuing search warrant under Chapter VII of the Code, is also vested in the Deputy Commissioners and the Assistant Commissioners. It would not be correct to understand Section 23(1) (b) of the Act to mean that the Deputy Commissioners and the Assistant Commissioners become Magistrates exercising powers under Section 96 of the Code only while issuing search warrants and they remain mere Deputy Commissioners and Assistant Commissioners while enforcing the search warrants. Hence, these acts of Deputy Commissioners and Assistant Commissioners under Section 23(1)(b) of the Act cannot at all be the acts of the Magistrate exercisable under Chapter VII of the Code. Therefore, I reject this contention.
9. Sri Venkanna contended that the order in question clearly shows that the search warrant was issued by the officer not as an Assistant Commissioner acting under Section 23 of the Act but as a Sub-Divisional Magistrate, Bangalore and hence, on the face of it, it is unsustainable because the recovery of public papers was not for any inquiry, trial or other proceeding under the Code. Mr. Venkanna is right in his contention. But the question is whether the order by itself is unjust and requires to be set aside by this Court in exercise of its revisional jurisdiction. Sri Venkanna urged that in view of the interpretation of Section 23(1)(b) of the Act made as above, the search warrant issued by an Assistant Commissioner or a Deputy Commissioner would not be revisable either by the Sessions Judge or by this Court under the provisions of the Code. This contention is sound. If the order in question is construed as an order passed by the Assistant Commissioner in exercise of the powers conferred on him under Section 23(1)(b) of the Act, it will have to be held that no revision lies against such order before the Sessions Judge and hence no revision lies in this Court under the provisions of the Code as the order would not be evidently made under the provisions of the Code.
10. In view of what has been narrated and discussed in the preceding paragraphs. I have no hesitation in holding that though the order in question purports to have been passed by the Officer as Sub-Divisional Magistrate, it is sustainable because of the powers vested in the said officer himself by Section 23(1)(b) of the Act and interests of justice do not require the said order to be set aside. When it is seen that the order is deemed to have been passed under Section 23(1)(b) of the Act, it has to be held that no revision under the Code lies and hence the revision petition is not competent.
11. Sri Venkanna, lastly urged that in view of Sections 49 and 56 of the Act, it would be open to his client J. K. Narayana Rao to agitate against the order in question before the Tribunal and at this stage, that remedy is likely to be barred by the period of limitation and therefore, this Court ought not to construe the order as having been made by the officer in his capacity as Assistant Commissioner exercising powers under Section 23(1)(b) of the Act. I do not find any difficulty in the way of Sri Narayana Rao, the client of Sri T. Venkanna in this behalf, Sri Narayana Rao has been bona fide pursuing his remedy before the Sessions Judge and this Court and the period taken in pursuing this remedy has to be taken into consideration while computing the period of limitation in case Sri Narayana Rao chooses to agitate either under Section 49 or under Section 56 of the Act.
12. In view of the foregoing reasons, this reference is rejected.