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Sakhawat Ali Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported inAIR1919All357; 51Ind.Cas.337
AppellantSakhawat Ali
RespondentEmperor
Excerpt:
criminal procedure code (act v of 1898), sections 145, 435, 439 - government of india act, 1915 (5 & 6 geo. v, c. 61), section 107--proceedings under section 145--revision--high court, power of interference of. - - -because there being no order showing that the learned magistrate was satisfied that a dispute likely to cause a breach of the peace exists and he not having made any order in writing stating the grounds of his being so satisfied, the whole proceeding was without jurisdiction and the order is ultra vires. the application is endorsed by an order of this court which runs as follows: 793. the remarks made by lord justice james appear to me to have a strong bearing upon the case before me, and upon the power of this court to entertain motions of this kind. 1 am then forced..........court in the exercise of its ordinary original criminal jurisdiction shall be regulated by the code of criminal procedure prescribed by an act of the governor-general in council and being act no. xxv of 1831 or by such further or other laws in relation to criminal procedure as may have been or may be made by such authority as aforesaid. the present case does not fall under the latter class of cases, viz., cases brought before this court in the exercise of its ordinary original criminal jurisdiction. act xxv of 1861 has been repealed, and has been replaced by act v of 1898. if section 107 is some new section conferring new powers or extending powers, then it is subject to what is known as the rule of strict construction see maxwell on interpretation of statutes, 5th edition, page 475......
Judgment:

George Knox, J.

1. Early in November last an application was presented to a learned Judge of this Court which is described as being a criminal revision against the order of M. Mumtaz-ul-lah Khan, Magistrate of the first class of Basti, dated the 7th of September 1918, charge under Section 145 of the Criminal Procedure Code. It is subdivided into three heads. The first is: --Because there being no order showing that the learned Magistrate was satisfied that a dispute likely to cause a breach of the peace exists and he not having made any order in writing stating the grounds of his being so satisfied, the whole proceeding was without jurisdiction and the order is ultra vires. I need not, at any rate at present, go into the second and third grounds set out in this application. The application is endorsed by an order of this Court which runs as follows:--'I admit this under Section 107 of the Government of India Act. Let notice go to show cause whether proceedings were taken and order made without jurisdiction.' In pursuance of this order a notice went to the other party Shukr-ul-lah and also to the Magistrate whose order was attacked. They were told that the ease would be heard and they were informed that they might show cause accordingly.

2. The point then that I have to consider is whether the proceedings taken before or by the Magistrate and the order made by him were or were not without jurisdiction. The reason for this order being passed is, no doubt, on account of what is stated in Section 435, Clause 3, of the Criminal Procedure Code. It must be remembered that that clause sets out that proceedings under Chapter XII are not proceedings within the meaning of Section 435. I know of no section in the Criminal Procedure Code, other than Section 435, and none other has been pointed out to me, whereby this Court can call for records of subordinate criminal Courts. Section 195 of the Code may indirectly give this power, but the case before me is not one under Section 195 of the Code and it has been laid down by this Court more than once that proceedings under Chapter XII are not proceedings which can be called up by Section 435 of the Criminal Procedure Code. To this matter I shall again refer. But if the case is as stated by me, then this Court has no power under Section 435 to call up any proceedings under Chapter XII. The learned Counsel who appears for the applicant seems to have felt this obstacle in his path, and to have in consequence moved the learned Judge of this Court to call up the proceedings under Chapter XII by virtue of what he appears to have stated as being an enabling power that this Court has in this direction under Section 107 of the Government of India Act, 1915. I find some difficulty in following the line or course taken by him. Section 107 cited above is either a Section consolidating the existing procedure or it is anew section creating some new jurisdiction or conferring some new powers. I will look at it from both sides. The powers vested in this High Court of Judicature, at the time the Government of India Act of 1915, commenced, are set out in Section 29 of the Letters Patent under date the 17th of March, 29 Victoria. According to that the proceedings in all criminal cases other than criminal cases which shall be brought before this High Court in the exercise of its ordinary original criminal jurisdiction shall be regulated by the Code of Criminal Procedure prescribed by an Act of the Governor-General in Council and being Act No. XXV of 1831 or by such further or other laws in relation to criminal procedure as may have been or may be made by such authority as aforesaid. The present case does not fall under the latter class of cases, viz., cases brought before this Court in the exercise of its ordinary original criminal jurisdiction. Act XXV of 1861 has been repealed, and has been replaced by Act V of 1898. If Section 107 is some new section conferring new powers or extending powers, then it is subject to what is known as the rule of strict construction See Maxwell on Interpretation of Statutes, 5th Edition, page 475. See also Flower v. Lloyd (1877) 6 Ch. D. 297 at p. 301 ; 46 L.J. Ch. 838 ; 37 L.T. 419 ; 25 W.R. 793. The remarks made by Lord Justice James appear to me to have a strong bearing upon the case before me, and upon the power of this Court to entertain motions of this kind. I have a still farther difficulty in understanding how Section 107 can, in any way, apply to the present application. Looking to the language of Section 107 I find that this Court has superintendence over all Courts subordinate to its appellate jurisdiction and that it may do certain things, namely, call for returns, direct transfer of suits and appeals, make and issue general rules regulating the practice and proceedings of inferior Courts, prescribe forma in which books, entries, etc., are to be kept in the offices of the inferior Courts, and settle table of fees.

3. The application before me certainly does not fall under returns nor under transfer of suits. Even if it does fall under rules, forms and tables, which is open to doubt, such rules, forms and tables must not be inconsistent with the provisions of any Act for the time being in force, let us say Act V of 1898 for instance, and must have the previous approval of the Local Government. I know of no rules bearing upon Chapter XII which have been issued by this Court and none such has been pointed out to me. 1 am then forced back upon the conclusion that if any power such as that claimed exists anywhere it exists in Section 29 of the Letters Patent and as I have already said, I have not been satisfied that any such power exists under this section.

4. In the case of Ananda Chandra Bhuttacharjee v. Carr Stephen 19 C. 127 ; 9 Ind. Dec. (N.S.) 530 this point was raised. In fact, Petheram, C.J., says regarding it in his judgment that the point most pressed in the appeal was that the Court had no jurisdiction to interfere with this order at all on the ground that orders made under Section 144 are, by the last clause of Section 435, exempted from the operation of that section. His reply to this was divided into two sections.

5. First, the mere statement that an order is made under Section 144, if it is not such an order as is contemplated by the section and could not be made under it, does not make it an order under that section.

6. The second was that under Section 439 the Court has the general power of revision of all orders made by inferior criminal Courts which come before it in any way whatsoever, and it is clear that this Court, under Clause 15 of the Charter, has a general power of superintendence and under that power can send for any record which it may desire to see. He also added that the Court has power to interfere under the Charter Act if the proceeding of a Magistrate is ultra vires and could not be made under Section 144. He pointed out that this had been accepted in the Calcutta Court for a great many years, both under Section 144 of the present Code and Section 518 of the old Code. He added a list of decisions to that effect with which the Court deciding that case agreed. With every respect to the Calcutta Court in this matter, it appears to me that sufficient consideration was not given to the words of Section 435. If we read Section 435 as a whole, it seems to amount to this. The High Court may call for and examine the record of any proceeding, proceedings under Chapter XII, etc, being excepted, for the purpose of satisfying itself as to the legality or propriety of the finding, etc, and as to the regularity of any proceedings of the inferior Courts other than proceedings under Chapter XII of the Code of Criminal Procedure. When read in this light the difficulty of calling for records or proceedings under Chapter XII again crops up and I am face to face with the same difficulty that I had on which I pronounced my judgment in Jhingai Singh v. Ram Partap 1 Ind. Cas. 762 ; 31 A. 150 ; 6 A.L.J. 113 ; 9 Cr. L,J. 382. But i need not go further into this matter, for I have already dealt with it at length in previous decisions, except to add that in Sundar Nath v. Emperor 44 Ind. Cas. 673 ; 16 A.L.J. 189 ; 19 Cr. L.J. 369 ; 40 A. 364 the view was maintained by another Judge of the Court that under the circumstances the Court cannot send for records.

7. There is one case which calls for consideration and that is the case of Girdhari Singh V. Hurdeo Narain Singh 3 I.A. 230 at p. 338 ; 26 W.R. 44, in which the Privy Council upheld the High Court of Bengal in a decision arrived at by that Court upon an application under Section 15 of the Charter Act. The Privy Council (see page 238) there said of a Subordinate Judge whose procedure was impugned that it was competent to the High Court, by a proceeding in the nature of mandamus, to order the lower Court to do that which it ought to have done, namely, having rejected the objections to the sale, to confirm it; and the High Court proceeded upon that section and made the order. But the High Court did not merely treat the judgment of the Subordinate Judge...as a nullity; they entered into the question as to whether the objections to the sale were valid or not valid. In fact, they treated the case in their decision as if the lower Court had actually confirmed the sale, and there had been an appeal to them--against the confirmation. Their Lordships think that they may look at the case now in the way in which the Judges looked at it then.' The Privy Council then went into the merits and upheld the High Court and recognised that the duty of the High Court on such applications is to look into the merits and make a final order. With reference to this decision by which of course I am bound, it must be noted that the decision refers to the civil jurisdiction of the Court and not to the criminal. Section 9 appears to give wider powers.

8. I now turn to the arguments by which the learned Counsel for Saiyid Sakhawat Ali sought to support his application. Before me he put in an affidavit to which I have already referred. This affidavit says that the person swearing to it personally inspected the record of the Section 145 proceedings and found that the very first order passed by the learned Magistrate was that of the 14th of February 1918, of which he had obtained a certified copy. If that paper be read as it stands, it is open to attack in that it makes no specific mention of the Magistrate having been satisfied that a dispute likely to cause a breach of the peace existed. The learned Vakil for Shukr-ul-lah on the other hand points out that this copy is only part of the Magistrate's order and that the whole order if read is conclusive that the Magistrate had not only been satisfied but in his order had stated that he was satisfied. I find he is right.

9. The net result is that so far as has been shown the Magistrate had jurisdiction to hold this enquiry and was properly seised of the case. The case is one which is entirely in conformity with the case of Syeda Khatun v. Lal Singh 25 Ind. Cas. 321 ; 36 A. 233 ; 12 A.L.J. 341 ; 15 Cr. L.J. 572. This Court has no jurisdiction to interfere and the application is dismissed. I wish to add that I am much indebted to the Counsel on either side for their careful and elaborate arguments. I have not gone into those arguments at greater length because, as I say, I hold that I have no jurisdiction to interfere in this case. The following cases were cited to me and I add them here by way of reference.

10. For Applicant: Bihari Lal v. Chhajju 2 A.L.J. 272 ; 2 Cr. L.J. 222; Dhan Pershad v. Ganesh 20 Ind. Cas. 751 ; 11 A.L.J. 696 ; 14 Cr. L.J. 495; Jhengar v. Baij Nath 19 Ind. Cas. 709 ; 11 A.L.J. 586 ; 14 Cr. L.J. 277; Ram Lochan v Emperor 22 Ind. Cas. 171 ; 12 A.L.J. 162 ; 15 Cr. L.J. 27 ; 36 A. 143; Nathu Ram v. Emperor 39 Ind. Cas. 701 ; 15 A.L.J. 270 ; 18 Cr. L.J. 557 and Sheorani v. Baij Nath 33 Ind. Cas. 625 ; 14 A.L.J. 146 ; 17 Cr. L.J. 145.

11. For Opposite Party:-Debi Prasad v. Sheodat Rai 4 A.L.J. 705 ; 30 A. 41 ; A.W.N. (1907) 265 ; 6 Cr. L.J. 352; Jhingai Singh v. Ram Partap 1 Ind. Cas. 762 ; 31 A. 150 ; 6 A.L.J. 113 ; 9 Cr. L,J. 382; Syeda Khatun v. Lal Singh 25 Ind. Cas. 321 ; 36 A. 233 ; 12 A.L.J. 341 ; 15 Cr. L.J. 572; Har Prasad v. Pandurang A.W.N. (1905) 260 ; 3 Cr. L.J. 48; Goluck Chandra v. Kali Charan 13 C.175 ; 6 Ind. Dec. (N.S.) 615; Matukdhari Singh v. Jaisari 41 Ind. Cas. 652 ; 15 A.L.J. 576 ; 39 A. 612 ; 18 Cr. L.J. 828 and Chinnappudayan, In the matter of 30 M. 548 ; 3 M.L.T. 18 ; 7 Cr. L.T. 28.

12. Nowhere throughout the case was any allegation ever raised by the applicants that they had been prejudiced, although the case was argued for a month and a mass of evidence taken.


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