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Adari Gangunaidu and anr. Vs. Lakkoju Narayanamurthy and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1958CriLJ730
AppellantAdari Gangunaidu and anr.
RespondentLakkoju Narayanamurthy and anr.
Excerpt:
.....of economy, and also-more conducive to public convenience, if the present sub-divisional magistrates (judicial) are abolished and replaced by judicial first class. the expressed object of the replacement of such division magistrates by judicial first class magistrates was that 'it would be a better measure of economy and also more conducive to public convenience',for the salary of a judicial first class magistrate is less than that of a sub-divisional magistrate......the order of the additional district and sessions judge, visakhapataam, directing the judicial 1st class magistrate yellamanchili, to re-entertain criminal m. p. no. 21 of 1956 and dispose of it on merits in accordance with law.2. criminal r. c. no. 508 of 1956 is a revision against the order of the judicial 1st class magistrate, yellamanchili in criminal m. p. no. 2 of 1956 rejecting the petition.3. the petitioner in criminal m. p. no. 21 of 1956 filed the said petition in the court of the judicial 1st class magistrate, yellamanchili, against the respondents requesting the court to file a complaint against them under section 476, criminal p.c. the petitioner alleged that the 1st respondent gave a written complaint falsely accusing the petitioner of house-breaking and robbery of gold.....
Judgment:

Subba Rao, C.J.

1. (Crl. R. C. No. 374 of 1956) This is a criminal revision against the order of the Additional District and Sessions Judge, Visakhapataam, directing the Judicial 1st Class Magistrate Yellamanchili, to re-entertain Criminal M. P. No. 21 of 1956 and dispose of it on merits in accordance with law.

2. Criminal R. C. No. 508 of 1956 is a revision against the order of the Judicial 1st Class Magistrate, Yellamanchili in Criminal M. P. No. 2 of 1956 rejecting the petition.

3. The petitioner in Criminal M. P. No. 21 of 1956 filed the said petition in the Court of the Judicial 1st Class Magistrate, Yellamanchili, against the respondents requesting the Court to file a complaint against them under Section 476, Criminal P.C. The petitioner alleged that the 1st respondent gave a written complaint falsely accusing the petitioner of house-breaking and robbery of gold jewels in his house on 26-1-1955 to the 2nd respondent, the Village Munsif of Ganaparti, who, with the knowledge that the allegations were not true, prepared his crime reports and sent them to the appropriate authorities, who Sled a charge sheet against the petitioner under Section 392, IPC in the Court of the Sub-Divisional Magistrate.

The Sub-Divisional Magistrate disbelieved the evidence of the prosecution and discharged the petitioner on 23-9-1955. The petitioner's case was that the respondents, in view of factions in the village, made a false charge against him maliciously with a view to harass him and that, therefore, it was a fit case for filing a complaint against the respondents under Section 476, Criminal P.C.

The respondents raised a preliminary objection that the Judicial 1st Class Magistrate, Yellamanchili, had no jurisdiction to entertain the petition on the ground that the Court of the judicial 1st Class Magistrate, Yellamanchili was neither the same Court nor the successor court to the Court of the Sub-Divisional Magistrate, wherein the original complaint was filed & which discharged the petitioner.

The Judicial 1st Class Magistrate accepted the preliminary objection and without going into the merits, held that he had no jurisdiction to entertain the petition. The petitioner thereafter filed Criminal M. P. No. 62 of 1956 in the Court of the Additional District and Sessions Judge, Visakhapatnam, under Section 476 read with Section 195(1)(b), Criminal P. C, and the learned Additional District and Sessions Judge held that the Judicial 1st Class . Magistrate had jurisdiction to entertain the petition and directed him to take it on file and dispose of it in accordance with law. The present revision is filed against the said order.

4. The substantial question in this case is whether the Judicial 1st Class Magistrate had jurisdiction to entertain the petition; filed by the petitioner under Section 476, Criminal P.C. in respect of an offence alleged to have been committed by the respondent in relation to C.C. No. 26 of 1955 on the file of the Sub-Divisional Magistrate's Court, Yellamanchili.

5. Section 476(1) reads:

When any Civil, Revenue or Criminal Court is, whether an application made to it in this behalf or otherwise, of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195, Sub-section (1), Clause (b) or Clause (c) which appears to have been committed in or in relation to a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court, and shall forward the same to a Magistrate of the first class having jurisdiction....

Under this section, if an offence referred to in Section 195, Sub-section (1), Clause (b) or Clause (c) is committed in or in relation to a proceeding in a court, the Court wherein such offence has been committed is authorised to make a complaint in respect of the said offence. It is manifest from the aforesaid provisions and it is not disputed by the Counsel for the respondents that a Court other than the Court wherein the offence is committed cannot make such a complaint.

The question, therefore, is whether the Court of the Judicial 1st Class Magistrate is the same court or Successor Court to the Court of the Sub-Divisional Magistrate, which discharged the petitioner. This question can be answered only by noticing the relevant provisions of the Criminal Procedure Code and considering the notifications issued by the State Government in exercise of the powers conferred on them under the Code.

The following provisions of the Criminal P.C. among others, empower the State Government to coastitute criminal Court in the District and appoint officers to administer criminal justice.

6. Section 4(u):

Sub-Division' means a sub-division of a district.

Section 6:

Besides the High Court and the Courts constituted under any law other than this order for the time being in force, there shall be five classes of criminal courts in India namely:

1. Courts of Session.

2. Presidency Magistrate.

3. Magistrates of the First Class.

4. Magistrates of the Second Class.

5. Magistrates of the Third Class.

Section 8:

1. The State Government may diylde any district outside the presidency towns Into sub-divisions, or make any portion of such district a sub-division and may alter the limits of any sub-division,

Section 10:

1. In every district outside the presidency towns the State Government shall appoint a Magistrate of the First Glass, who shall be called the District Magistrate.

Section 12:

1) The State Government may appoint as many persons as it thinks fit, besides the District Magistrate to be Magistrates of the First, Second or Third Class in any district outside the presidency towns; and the State Government or the District Magistrate, subject to the control of the State Government may, from time to time, define local areas within which such persons may exercise all or any of the powers with which they may respectively be invested under this Code.

2. Except as otherwise provided by such definition, the jurisdiction and powers of such persons shall extend throughout such district.

Section 13:

1) The State Government may place any Magistrate of the first or second class in charge of a sub-division, and relieve him of the charge as occasion required.

2. Such Magistrate shall be called Sub-Divisional Magistrates.

Section 36:

All District Magistrates, Sub-Divisional Magistrates and Magistrates of the first, second and third classes, have the powers hereinafter respectively conferred upon them and specified in the third schedule. Such powers are called their 'ordinary powers'.

Section 37:

In addition to his ordinary powers, any Sub-Divisional Magistrate or any Magistrate of the first, Second or Third Class may be invested by the State Government or the District Magistrate, as the case may be, with any powers specified in the fourth schedule as powers with which he may be invested by the State Government or the District Magistrate.

7. The gist of the aforesaid sections, so far as they are relevant to the question raised, may be stated thus. A district is regarded as a general unit for the purpose of magisterial jurisdiction. Section 6 classified the Magistrates functioning in a district as Magistrates of the first class, second class and third class.

Section 10 empowers the State Government to appoint a first Class Magistrate in every district, who is called a district Magistrate, and if necessary, to appoint a Magistrate of the first class to be an Additional District Magistrate. Section 12 enables it to appoint in a district as many Magistrates of the aforesaid three categories as it thinks fit and to define the local areas of their jurisdiction and powers.

Section 8 authorises the State Government to divide any district into sub-divisions and under Section 13 any Magistrate of the first or second class may be placed in charge of a sub-division. Such Magistrates, who are given charge of a sub-division, are designated Sub-Divisional Magistrates.

8. There is apparent conflict between the provisions of Section 12 and Section 13 but really there is none. Section 13 applies to a case where the State Government divided a district into subdivisions, while the power conferred under Section 12 is exercisable by the Government generally not only in the absence of sub-divisions but also when they exist.

But the crucial point to be noted is that when a first or second class Magistrate is placed in charge of a sub-division, he is statutorily designated Sub-Divisional Magistrate. The fact that Government chooses to call such a Magistrate a Judicial First Class Magistrate or by any other name does not make him any the less a Sub-Divisional Magistrate for the Government could j not in law change the statutory label given to a' first or second class Magistrate placed in charge-of a sub-division.

9. In the present case, it is not disputed that the Government of Madras, in exercise of their powers conferred on them under Section 8, divided Visakhapatnam District into sub-divisions and the headquarters of one of such sub-divisions was Yellamanchili. No notification has been brought to our notice, either issued by the Government of Madras or Government of Andhra, cancelling or revoking the earlier notification dividing the district into sub-divisions.

We, therefore, assume that there is no such notification and, therefore, the earlier one still holds the field. Consequent upon the coming into force of the Criminal Procedure Code Amendment Act (Act X2CVI of 1955), the Government of Andhra made an order dated 26-3-1956 effecting changes in the set up of the criminal Judiciary in the State in an attempt to bring it in conformity with the provisions of the amending Act. The relevant clauses of that order may usefully be extracted;

Clause 3:

Government also agree with the High Court that the Sub-Divisional Magistrates (Judicial) also would not be having sufficient work now, on, account of the appellate powers being taken away from them. Government therefore agree with the High Court that instead of reducing the-strength of the Sub-Divisional Magistrates, it would be a better measure of economy, and also-more conducive to public convenience, if the present Sub-Divisional Magistrates (Judicial) are abolished and replaced by Judicial First Class. Magistrates of the grade of the present Additional First Class Magistrates (Judicial).

Government, therefore, order that with effect from 1-4-1956 the present posts of the Sub-Divisional Magistrates (Judicial) at Parvathipuram, Elamanchili, Bhimavaram, Kovvur, Kandukur, Gudur and Madanapalle should be abolished along with their staff.

Clause 5:

Government also sanction with effect from 1-4-1956 the creation of 12 posts of first class Magistrates (Judicial) in the grade of the existing Additional First Class Magistrates (Judicial) i. e., Rs. 200-10-300 plus a special pay of Rs. 5MO-100 with the usual staff of two lower division clerks, 1 typist and two peons in the usual scales of pay for each.

The headquarters of these First Class Magistrates will be at Parvathipuram, Elamanchili, Bhimavaram, Kowur, Kandukur, Gudur and Madanapalle In the place of the existing Sub-Divisional Magistrates (Judicial) who have been ordered to be abolished....

Clause 9:-Now that the Sub-Divisional Magistrates (Judicial) are getting abolished, there is no need to designate the First Class Magistrates (Judicial) as Additional First Class Magistrates. Goveminent, therefore, agree with the High Court that the First Class Magistrates (Judicial) of the grade of the existing Additional First Class Magistrates (Judicial) should be designated as Judicial Magistrates in the first class.

10. It will be seen from the aforesaid extracts that the Government of Andhra did not purport to cancel the sub-divisions into which Visakhapatnam district was divided for the purpose of criminal judicial administration. They simply abolished the posts of Sub-Divisional Magistrates and replaced them by Judicial First Class Magistrates.

The Judicial First Class Magistrates so appointed continued to have jurisdiction over the respective sub-divisions with their headquarters in the same place wherein the Sub-Divisional Magistrates exercised jurisdiction. The Sub-Divisional Magistrate of Yellamanchili was exercising jurisdiction over one of the sub-divisions of the Visakhapatnam district with his headquarters at Yellamanchili.

The notification did nothing more than abolish that post and appoint a Judicial First Class Magistrate in his stead in charge of the same sub-division. The expressed object of the replacement of such Division Magistrates by Judicial First Class Magistrates was that 'it would be a better measure of economy and also more conducive to public convenience', for the salary of a Judicial First Class Magistrate is less than that of a Sub-Divisional Magistrate.

In view of this notification, what is the status of the Judicial First Class Magistrate appointed by the Government to the Yellamanchili Sub-Division? The Code does not make any distinction between a Judicial first class Magistrate and an Executive First Class Magistrate. The convenient nomenclature given by the State to a particular class of officers is not of much relevance to the question raised.

In law, they are only First Class Magistrates whom the State has authority to appoint under the Code. If so, it must be taken that the State abolished the post of the Sub-Divisional Magistrate, Yellamanchili carrying a higher scale of pay and replaced it by the post of a First Class Magistrate with a lesser scale of pay and placed the appointee to the latter post in charge of the Sub-division.

Such a Magistrate is statutorily designated as a sub-divisional Magistrate under Section 13, Cr.PC It follows that the court presided over by the present officer is the same court wherein the offence is alleged to have been committed in or in relation to a proceeding therein. We, therefore, hold that the Judicial First Class Magistrate, Yellamanchili, has jurisdiction to entertain the petition.

11. It is then contended that the Additional District and Sessions Judge, Visakhapatnam, has no jurisdiction under Section 435, Criminal P.C., to entertain a revision against the order of the Judicial First Class Magistrate. The argument is that an Additional District and Sessions Judge is not a Sessions Judge within the meaning of Section 435, Criminal P.C.

This question need not be decided in this case as the petitioner has also filed a revision to this Court against the order of the Judicial First Class Magistrate rejecting the petition.

12. In the result, Criminal R. C. No. 374 of 1956 is dismissed and Criminal B. C. No. 508 of 1956 is allowed.


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