1. The question raised in these proceedings is one of considerable importance. It relates to the jurisdiction of an officer described as an Executive Magistrate to pass an attachment order under Section 145 of the Code of Criminal Procedure.
2. There are, in the Andhra State, a number of districts where the policy embodied in Article 50 of the Constitution of India 'of separating the judiciary from the executive in the public services of the State' is being implemented while there are a few districts where it is not. Such separation, where it is in force, is effected not by legislation hut administratively under the terms of G. O Ms. No. 2304 Public (Separation) Department, dated 24-9-1952. originally issued by the Government of Madras (when the Andhra State was part of the Madras State) which still continues to be operative within the Stale of Andhra. This G. O. is styled as a 'Memorandum of instructions issued for the guidance of the Judicial and Executive Magistrates under the Madras Scheme of Separation of the Judiciary from the Executive'. The scheme is designed within the framework of the Criminal Procedure Code and the powers and the functions of Magistrate to be exercised and discharged under that Code are divided between two sets of Magistrates described as the Judicial and the Executive Magistrates. Paragraph 3 of that G. O. points out that 'the functions of a Magistrate under the Criminal Procedure Code fall into three broad categories, viz. (a) Functions which are 'Police' in their nature, as for instance, the handling of unlawful assemblies; (b) functions of an administrative character, as for instance, the issue of licences for fire-arms, etc, and (c) functions which are essentially judicial as for instance, the trial of criminal cases.' Under the scheme, the purely judicial functions coming under category (c) are transferred to a new set of officers under the control of the High Court and designated as Judicial Magistrates. The Collector and the Revenue officers subordinate to him will, as before, continue to discharge functions falling under categories (a) and (b). But both sets of officers, in the terms of the G. O. 'will all be designated as Magistrates to satisfy statutory requirements'. It is unnecessary to go into the details of the scheme as adumbrated in the Government Order. But, for the purposes of the present case, paragraph 20 of the G. O., may be extracted:
20. Chapters X and XIII.-In cases falling under these Chapters, the Judicial Magistrate will take no action in the first instance. The Public and the police will go to the concerned Executive Magistrate and if he considers no action is necessary, or if his directions are complied with without contest, the proceedings will automatically end. If the party directed to show cause decides to do so & an enquiry becomes necessary, the case will be transferred by the District Magistrate to the appropriate Sub-Divisional Magistrate on the request of the Executive Magistrate concerned.
3. The point for determination now is whether an Executive Magistrate acting contrary to these directions though in conformity with the provisions of the Code can be said to have jurisdiction to do so
4. Before entering into a discussion of this question, it would be useful to have a brief account of the facts of the present case,
5. The dispute relates to a sugar factory once known as the Godavary Sugars and Refineries Ltd., (and now known as Sri Vijayalakshmi Sugar Mills) situate in Paidaparru, a village in Tanuku Taluk. The 'A' party respondents claims to have purchased it from the Official Liquidator (appointed by the High Court at Madras in O. P, No. 112/1062 on its file) for a sum Of Rs. 3,00,000 and to have also obtained possession thereof from him, between 9-12-1955 and 19-12-1955. There is a sale-deed, dated 2-4-1956 in their favour, The 'B' party respondents claim to have been in possession even before the sale and assert that the A party respondents are only benamidars who purported to obtain possession only on their behalf. The 4th respondent who is described as the General Manager of the factory says that he is now in possession of the factory on behalf of the 'B' party. According to the 'A' party, however, it was they who had appointed him as the General Manager on 21-12-1965; and they also say that they had dispensed with his services subsequently on 4-4-1956. By an order dated 30-4-1956 under Section 144. Criminal Procedure Code. Taluk Magistrate, Tanuku directed two of the present 'B' party respondents including the said Manager,, 'to abstain from obstructing the 'A' party respondents from having ingress and egress into Sri Vijayalakshmi Sugar Mills'. That order was in force for a month. Proceedings under S 145, Criminal Procedure Code, were subsequently initiated by the Sub-Divisional Magistrate, Kovvur and a preliminary order was passed. The 'A' party respondents then sought and obtained from the Sub-Divisional Magistrate an order of attachment under the second proviso to Sub-section (4) of Section 145, Criminal Procedure Code. It is the validity of this attachment that is now called in question.
6. Mr. K, Ramachandra Rao for the petitioners contends that the Sub-Divisional Magistrate. Kovvur, being only an Executive Magistrate has no jurisdiction to pass the order. He says that under the scheme of separation embodied in the above Government Order, the Magistrate being...only an Executive Magistrate cannot decide a dispute under Section 145 and that, therefore, he has no power to attach the subject of dispute which can only be done 'pending his decision'. Reliance is placed primarily on the language of Section 12 of the Criminal Procedure Code in support of the contention. After providing for the appointment by the State Government of as many persons as it thinks fit, besides the District Magistrate, to be Magistrates of the first, second or third class in any district Section 12 empowers the State Government or the District Magistrate, subject to the control of the State Government, from time to time, to '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.' It is argued that the different classes of Magistrates have only such powers as are vested in them by the State Government (or the District Magistrate as the case may be) under this latter provision and that the Government order has the effect of depriving all officers designated as Executive Magistrates of jurisdiction to conduct an enquiry under Section 145. Reference is also made to Section 41 of the Code which is in these terms:
41. (1) The State Government may withdraw all or any of the powers conferred under this Code on any person by it or by an officer subordinate to it.
(2) Any powers conferred by the District Magistrate may be withdrawn by the District Magistrate,' But. in order properly to interpret these two sections. Sections 36, 37 and 38 of the Code must also be read along with them. These Sections are as follows:
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'.
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.
38. The power conferred on the District Magistrate by Section 37, shall, be exercised subject to the control of the State Government.
7. Now, it is to be noticed that powers under Section 145 may be exercised as stated in that section by a District Magistrate, Sub-Divisional Magistrate or a Magistrate of the first class & the power to pass an order thereunder is one of the 'ordinary powers' of a Magistrate of the first class - vide item 7 under the heading 'Ordinary powers of a Magistrate of the First Class - III' in Schedule III. The power under Section 145 is therefore a power conferred on a Sub-Divisional Magistrate by Section 36 of the Code. The powers conferred upon the different categories of Magistrates as specified, in the 3rd Schedule are powers which the Magistrates have by virtue of their office and as a result of the statutory provision. Section 41 clearly does not authorise the State Government to withdraw all or any of these powers. It only enables them to withdraw 'all or any of the powers conferred under this Code on any person by it.' All ordinary powers are not powers conferred on a Magistrate by the State Government. The powers with which the State Government or the District Magistrate may invest a Magistrate are specified in the 4th schedule. It is all or any of these powers with which they may invest which they can withdraw. The phrase in Section 41 'conferred under this Code on any person by it', it is argued, necessarily implies that all powers which the Magistrates have under the Code are powers conferred by the State Government. This argument ignores the fact that even when the State Government invests a Magistrate with all or any of the powers under Schedule IV such officer is invested really with, a power or powers conferred under the Code, The proper way of looking at the matter is that all powers of Magistrates are conferred upon them by the Code. But while all Magistrates, qua Magistrates can exercise powers respectively assigned to them under Schedule III, they cannot exercise the Powers under Schedule IV without a prior order of investiture from the State Government. The State Government cannot, under any provision of the Code, deprive a Magistrate of his ordinary powers conferred upon him ex-officio by the Statute. The result, therefore, is that while the Magistrates may be amenable to disciplinary action at the hands of the Government for disobedience of their instructions as embodied in the Government Order abovementioned, their jurisdiction to exercise the ordinary powers vested in them under Section 36 of the Code is always there and can only be lost by deprivation of their office. I, therefore, cannot hold that the Sub-Divisional Magistrate, Kovvur, has no jurisdiction to pass the order now in question.
8. My attention has been drawn to a decision reported in State of Vindhya Pradesh v. Govind Ram AIR 1951 Vind Pra 49(A). In that state also it appears that the separation of the Judiciary from the Executive is enforced by a Government Order similar in terms to the one I am now dealing with. Referring to it, the learned Judge stated as follows : (P. 51).
The order of Government aforesaid reconciles the system or separation of executive and judicial functions, with the Criminal Procedure Code which since 1949 is the same here as elsewhere in the country. According to the letter of the Code, the District Magistrate can pass certain orders and do certain things; but this Court may have to cancel or modify them, if they conflict with the established practice here and the Government's own instructions.
With great respect, it seems to me that the proposition that the provisions of a Statute should be treated as abrogated by Government orders is unsound and cannot be accepted by any Court of Law.
9. For the foregoing reasons, I dismiss Criminal Revision Case No. 247 of 1956 and Criminal Miscellaneous Petitions Nos. 628, 629 and 637 Of 1056, interim stay granted in these proceedings will stand vacated at once.
10. Criminal Miscellaneous Petition No. 653 of 1956 is an application by two persons claiming to have obtained a leasehold interest in the factory from the 'B' party respondents and seeking permission to take charge of the factory and work it. They want to join these proceedings as party respondents so that the Court may pass an order directing delivery of the sugar factory to them instead of keeping it, idle under attachment. They seek delivery of the factory in a separate petition Crl. M. P. No. 654 of 1956. I do not propose either to add them or to give any such directions. Under the new Criminal Procedure Code, the enquiry is to be terminated as far as practicable within a period of two months or within such longer period as it may take the Civil Court to determine the question of possession if the same is referred to it under Section 146(1) of the Code. If the matter goes before the Civil Court, the petitioners may approach it if they are so advised. These two applications also are dismissed with costs in Crl. M. P. No. 653/56 fixed at Rs. 50.
Note.- Cost of Rs. 50(Rupees Fifty only) fixed! by the Court to be paid by the petitioners in Crl. M.P No. 653/56 to the respondents therein.