1. This is a reference under Section 438, Criminal P.C. by the Sessions Judge, Bhopal, recommending that the order dated 19.9.1951 passed by the Addl. District Magistrate, Bhopal, be set aside.
2. An application was made to the Sessions Judge, Bhopal, complaining that the A.D.M., Bhopal, by his order dated 19.9.1951, delivered possession of a portion of the premises belonging to the mosque out of plot Nos. 185 and 180 to the New Bhopal Textiles Ltd., Bhopal, by dismantling the cistern of the mosque located in that area. The order was passed without any enquiry and without giving any opportunity to the mosque authorities to put forward their claim to the land in dispute. The action of the A.D.M. was illegal and irregular. The land forms part of the mosque promises and was all along in its possession. If the mill authorities had any manner of right to the land in dispute, they should have gone to the civil Court and claimed an adjudication on the question of their title. As the order of the Addl. District Magistrate is most unreasonable, it should be set aside and possession of the land should be restored to the applicant.
3. On receiving this application, the Sessions Judge, Bhopal, asked for a report from the A.D.M. For some time no report was submitted by the A.D.M. to the Court concerned, but finally the A.D.M. informed the Sessions Judge that the order under revision was passed by him in his administrative capacity as an executive officer and that it was not passed by him under the Cr.P.C. He further reported that he had no record of any proceeding and, therefore, he was unable to forward any such proceeding to the Court of Session as asked for.
4. The non applicant was also noticed but the record of the Sessions Judge is silent as to the position that was taken up by him.
5. In this Court, notices were issued both to the non-applicant and the State and both of them entered appearance to show cause against the reference made by the Sessions Judge.
6. On behalf of the non-applicant an affidavit sworn by A.P.M. Nair of the New Bhopal Textiles Ltd., has been filed in this Court. In this affidavit, it is pointed out that plot No. 186 on which the mosque stands was specially excluded from being made over to the Mills by the State, whereas plot No. 185, which was never in possession of the mosque was given to the Mills along with other land. But the mosque authorities encroached on plot No. 185 without any right and, therefore, the matter was brought to the notice of the Chief Commissioner as the head of the Administration of the State.
7. Even though a short history of the premises has been given by the official of the Textile Mill it was not shown how the Additional District Magistrate put the mill authorities in possession of the disputed site. It seems to me that an action was taken on the report made to the Chief Com-missioner.
8. The applicant also filed an affidavit to the effect that the cistern was on plot No. 186 which belongs to the mosque authorities and that plot No. 185 is still lying unused and is not taken possession of by the mosque.
9. There is no material before me to find out whether the cistern was on plot No. 185 or 186 and whether the mosque authorities had encroached upon any land belonging to the mill authorities.
10. While showing cause against the reference the learned Government Advocate contended that this Court has no jurisdiction to entertain the application in revision, because the order sought to be revised was not passed by the A.D.M., as a 'Court' and his proceedings, if any, are not that of an 'inferior Criminal Court' as contemplated by Section 435, Criminal P.C. In support of his contention he relies on a string of rulings. On the other hand, the learned Counsel for the applicant supports the reference by the Sessions Judge on the sole authority of Editor, Tribune v. Emperor A.I.R. 1942 Lab. 171 (F.B.), which has been cited by the learned Sessions Judge in his reference. In reply the Government Advocate argued that the authority cited by the learned Sessions Judge and relied on by the applicant does not fit in with the facts of this case, as in that case, an order wag passed by the D.M., under Section 144, Criminal P.C. An order passed under that section can only be passed by a 'Court' as contemplated by the Code of Criminal Procedure. This decision, therefore, according to him is no authority for the proposition which the applicant propounds.
11. Section 6, Criminal P.C. enumerates the classes of Criminal Courts. Section 10, ibid, gives power to the State to appoint a first class Magistrate as a District Magistrate and Additional District Magistrate. Sub-section (2) of Section 10, ibid lays down that the powers of the Addl. District Magistrate shall be analogous to those of the District Magistrate. Chapter 3 of the Code deals with the powers of the different Courts to try offences under the Penal Code and under other penal laws. There are certain additional powers which the Courts constituted under the Criminal Procedure Code exercise and those powers have been enumerated in chaps. 8 to 12. The procedure which these Courts have to follow while dealing with different types of cases is also laid down in the Criminal Procedure Code. The proceedings of these Courts are judicial proceedings of the 'inferior criminal Courts' and are liable to be revised by the High Court under Section 435, Criminal P.C. The Magistrates who exercise their powers as Courts of Criminal Procedure have also the additional powers given to them under the various penal laws. I may, however, instance the Municipalities Act, the Indian Railways Act, the Police Act, the Defence of India Act and the rules framed thereunder, and the like. While exercising powers under these enactments, the Magistrates follow the special procedure if any laid down in those Acts and inflict the punishment mentioned in them.
While exercising jurisdiction under those various -Acts, the Magistrates do not act as 'Courts' as contemplated by the Code of Criminal Procedure. They exercise their powers in their personal capacity as 'persona designata'. The learned Government Advocate emphasized this point in his argument and has cited authorities in support of the proposition that the Magistrates, even though they exercise jurisdiction as such, are not 'Courts' within the meaning of the Criminal Procedure Code. The authorities cited are Usman Haji Mahomed In re A.I.R. 1930 Bom. 486, Krishen Doyal v. Corporation of Calcutta A.I.R. 1927 Cal. 509, Manilal v. Kamber Ali A.I.R. 1927 Sind 231, Secy. of State v. Gobindram A.I.R. 1930 Sind 162; Maghanmal Gianchand v. Emperor A.I.R. 1930 Sind 430, Bejoy Krishna v. Shyam Narain A.I.R. 1940 Cal. 30 and Ujamshi Govindji v. Emperor A.I.R. 1946 Bom. 333.
12. In Usman Haji Mahomed, In re A.I.R. 1930 Bom. 486, the Magistrate was exercising jurisdiction under Section 45, Bombay City Police Act, and it was held that the power so exercised by him was not that of a Criminal Court but as a 'persona designata' and as such, the High Court had no jurisdiction to revise his order. In Krishen Doyal v. Corporation of Calcutta A.I.R. 1927 Cal. 509, the powers were exercised under the Municipalities Act and the same rule was applied. In Manilal v. Kamber Ali A.I.R. 1927 Sind 231, the Magistrate exercised jurisdiction under Section 86, Bombay District Municipalities Act, whereas in Secy. of State v. Gobindram A.I.R. 1930 Sind 162, the jurisdiction was exercised under the Railways Act. In both these cases it was ruled that Section 435, Criminal P.C. did not apply. To the same effect was the view expressed in Maghanmal Gianchand v. Emperor A.I.R. 1939 Sind 430, where the Magistrate was exercising jurisdiction under the Bombay District Police Act. In Ujamshi Govindaji v. Emperor A.I.R. 1946 Bom. 533, the Magistrate exercised a jurisdiction under the Defence of India Rules and his order was found to be beyond the supervisory jurisdiction of the High Court. Bejoy Krishna v. Shyam Narain A.I.R. 1940 Cal. 30, is somewhat important for this case inasmuch as there it has been pointed out that a Magistrate has other powers besides those contemplated by the Code of Criminal Procedure. He may be a Collector of the District and also a District Officer and in those capacities he has to perform many functions which are not covered by the Criminal Procedure Code.
13. The trend of the authorities cited on behalf of the non-applicant shows that unless jurisdiction is exercised by a Magistrate sitting as a Court of Criminal Procedure, the High Court has no jurisdiction over the orders passed by him. The orders passed by him in his personal capacity as 'persona designata' or in his executive capacity are outside the control of the High Court.
14. What I have to see in this particular case is whether the order that was passed by the A.D.M., was so passed as a Court of criminal procedure or in his personal capacity as an executive officer. If it was passed by him as a Court of Criminal Procedure, this Court will have jurisdiction to scrutinize his order but if it was passed in some other capacity, the point to be determined would be whether this Court shall have jurisdiction to scrutinize that order. The A.D.M. in his report to the Sessions Judge pointed out that he did not pass the order as a Court but as an administrative officer in his executive capacity. The very fact that no record of the proceeding has been kept and that no enquiry was made confirms the belief that action was taken as an executive measure. The mere fact that the Magistrate happens to be a Magistrate constituted under the Criminal Procedure Code does not 'ipso facto' lead to the conclusion that every order that he passes and every action that he takes is under the powers conferred on him under the Code of Criminal Procedure.
In my opinion, the present action of the A.D.M. can by no stretch of imagination be taken as an action by a Court of law. A Court of criminal procedure has to follow the rules of procedure laid down in Criminal P.C. In matters of evidence, the rules of evidence laid down in the Evidence Act have to be followed. But no such thing was done in the present case which further indicates that the A.D.M. did not take action under the Criminal Procedure Code, It is wrong to suppose, therefore, that the action was taken under the Criminal Procedure Code and the learned Sessions Judge who opined that the action taken by the A.D.M. could not be but that of a Court of law is, in my opinion, erroneous.
15. Ordinarily, therefore, the action of the A.D.M. taken as an executive officer is outside the 'pale' of criminal procedure and as such, this Court, sitting in revision under the powers conferred by the Criminal P.C. has no jurisdiction to scrutinize the executive action of an agent of the State. The powers of this Court are controlled by the Code and unless it is clearly indicated that an order that is sought to be revised is one that is passed by a Court of inferior jurisdiction, this Court is powerless. In the present case, in my opinion, the order was not passed by a Court of criminal procedure and consequently this Court has no jurisdiction to revise it.
16. Even assuming for a moment that the order that was passed by the A.D.M. is amenable to the scrutiny of the High Court, the second question to be determined would be whether the order is such that it must be revised under the paternal jurisdiction of this Court. The powers conferred on this Court to revise the orders of subordinate criminal Courts are, no doubt, very wide and are exercised to prevent miscarriage of justice. The mere fact that certain irregularity and illegality of procedure has been committed or that erroneous view of law is taken, will not by itself be a good ground to set aside the order, unless it is shown that substantial injustice has been done in any particular case, which cannot be set right by any other method. It is not merely the irregularity or the illegality of procedure or the wrong application of the law which will give power to this Court to exercise its extraordinary powers of revision. It is the effect of the irregularity et cetera that is important for the exercise of discretion. If there is some other remedy open to the aggrieved party, this Court will be slow to interfere, even though the order is defective. But no hard and fast rule can be laid down and each case depends on its own merits. I should not be understood to mean that in every case in which an alternative remedy is available, this Court will decline to interfere. What I mean to lay down is that that is point which may be considered while exercising discretion in such cases.
17. In the present case, even though the action taken was somewhat hasty and arbitrary, no substantial injustice has been done, inasmuch as the applicant has got a remedy of getting his right adjudicated upon by a Court of law. This remedy is neither complicated, nor expensive, nor would it in any way deprive the applicant of any right which he has acquired. What the executive officer has done is that be has maintained the status quo. The dispute between the parties would not be finally settled in the Magistrate's Court, nor would it be settled if this Court were to interfere in revision. The only point is who is to go to the civil Court. It makes little difference whether it is the applicant or the non-applicant who is the suitor in a Court of law. In any case, I am not satisfied that by declining to interfere an irreparable injury will be caused to the applicant. For this reason, oven if the order under reference may be capable of being revised, I shall decline to do so.
18. In the result the application is dismissed and the reference is not accepted.