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Gajadharlal S/O Tarachand and ors. Vs. Suganchand S/O Choudhary Jawaharlal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Case NumberCriminal Revn. No. 172 of 1954
Judge
Reported inAIR1958MP184; 1958CriLJ897
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 10, 12, 12(1), 12(2), 13, 13(1), 17, 17(2), 36, 37 and 145
AppellantGajadharlal S/O Tarachand and ors.
RespondentSuganchand S/O Choudhary Jawaharlal
Appellant AdvocateP.L. Inamdar, Adv.
Respondent AdvocateP.R. Sharma, Govt. Adv.
Cases ReferredRe Toronto Rly. Co. v. City of Toronto
Excerpt:
.....out of justice as well as the usual administrative duties. ' 6. the words 'other than a sub-divisional magistrate',which occur in sub-section (2) cannot clearly be read as implying that there can be more than one sub-divisional magistrate in a sub-division and that government have the power to appoint more than one sub-divisional magistrate in a sub-division, when section 13 gives no such power. but would like to add a few words. the learned government advocate tried to make a distinction between a magistrate of the first or second class who is placed in charge of a sub-division and a magistrate like tehsildar to whom powers of sub-divisional magistrate are conferred and referred to section 12 (1) as indicating that it is competent for the state government to invest any person all..........had no jurisdiction to entertain the application under section 145 as he was merely a second class magistrate and as on the appointment of mr. rathore as sub-divisional magistrate of kolaras he ceased to be the sub-divisional magistrate of that sub-division.the learned district magistrate did not appreciate the contention and rejected it by merely observing that though as a second class magistrate mr. sagne had no jurisdiction to take action under section 145, cr. p. c., he had the power to make the order he did, as he was the sub-divisional magistrate. the applicants then filed an application in revision in the madhya bharat high court against the order of the district magistrate of shivpuri. a rule having been issued and cause being shown before the single bench a reference has.....
Judgment:

P.V. Dixit, J.

1. This reference by a Single Judge involves a question as to the legality of the appointment of more than one Sub-divisional Magistrate' in a sub-division in that part of Madhya Pradesh which was formerly Madhya Bharat.

2. The circumstances leading to this reference are that on 17th February, 1949, the Madhya Bharat Government issued a notification (Notification No. 11 dated 17th February, 1949, published in the Madhya Bharat Government Gazette of 19th February 1949, at page 284) under Section 12 of the Criminal Procedure Code, as adapted in Madhya Bharat, appointing all Tehsildars a-. Magistrates of the Second Class and 'investing them with the powers of Sub-divisional Magistrates with jurisdiction over their respective Parganas' under Section 13 of the Code.

On 12th May, 1954, the Government issued another notification (Notification No. 107 (5) dated 12th May, 1954, published in the Madhya Bharat Government Gazette dated 20th May, 1954 at page 24) under 'Section 13 (i), Cr. P. C. placing some First Class Judicial Magistrates named therein in charge of sub-divisions shown against their names. One of them was Mr. D. S. Rathore, who was placed in charge of Kolaras sub-division. On 12th July, 1954, the non-applicant Suganchand presented an application under Section 145 of the Code before Mr. Sagne; Tehsildar of Kolaras, complaining that the applicants had obstructed his right of passage on a pathway by putting a wall thereon.

The Tehsildar made an interim order on 12th July, 1954. restraining the applicants from interfering with the non-applicant's right of passage till further orders. The petitioners then went up in revision before the District Magistrate of Shivpuri contending that the Tehsildar had no jurisdiction to entertain the application under Section 145 as he was merely a Second Class Magistrate and as on the appointment of Mr. Rathore as Sub-divisional Magistrate of Kolaras he ceased to be the Sub-divisional Magistrate of that sub-division.

The learned District Magistrate did not appreciate the contention and rejected it by merely observing that though as a Second Class Magistrate Mr. Sagne had no jurisdiction to take action under Section 145, Cr. P. C., he had the power to make the order he did, as he was the Sub-divisional Magistrate. The applicants then filed an application in revision in the Madhya Bharat High Court against the order of the District Magistrate of Shivpuri. A rule having been issued and cause being shown before the Single Bench a reference has been made to this Division Bench.

3. Mr. Inamdar, learned counsel for the applicants, contended that Mr. Sagne had no jurisdiction to make any order under Section 145 as lie was only a Second Class Magistrate on the date the non-applicant presented his petition under Section 145 and Mr. Sagne made the interim prohibitory order against the applicants. This argument proceeds upon the view: (1) that Section 13 contemplates only one Magistrate of first class or Second class being placed in charge of a sub-division; (ii) that, therefore, even assuming that the notification dated 17th February, 1949, investing the Tehsildars with powers ofSub-divisional Magistrates with jurisdiction over their respective Farganas' was in conformity With Section 33 (1), Cr. P. C., Mr. Sagne, who was a Tehsildar, ceased to be the Sub-divisional Magistrate of Kolaras when Mr. Rathore was placed in charge of that sub-division by the subsequent notification issued on 20th May, 1954.

In reply, Mr. Sharma, learned Government Advocate for the State, did not dispute that there could be only one first class or secondclass Magistrate in charge of a sub-division. He, however, drew a distinction between a first class or second class Magistrate in charge of a sub-division and a first or second class Magistrate invested with the powers of a Sub-divisional Magistrate, and submitted that Sections 12 and 13, Cr. P. C., read together, empowered the Government to place a first class or second class Magistrate is charge of a sub-divisionand also invest the Magistrate in the sub-divisions with the powers of the Sub-divisional Magistrate, and that, therefore, the notification dated 20th May, 1954, placing Mr. Rathore in charge of Kolaras sub-division did not in any way affect the powers of the Sub-divisional Magistrate conferred on Mr. Sagne by virtue of his position as Tehsildar by the earlier notification of 1949.

4. The question for our decision is a simple one. But it deals with an important matter of practice which originated in the attempts of the Madhya Bharat Government to introduce separation of judicial and executive functions without amending the material provisions of the Code of Criminal Procedure, 1898, which as is well known, was enacted when the combination of the judicial and executive powers was felt to be essential for efficient administration and which accordingly vested magisterial and executive functions inthe District Officers, responsible for the carrying out of justice as well as the usual administrative duties. The question turns on the right construction of Section 13 (1) and (2) which are as follows :

'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 requires.

(2) Such Magistrates shall be called Sub-divisional Magistrate.'

Section 13 (1) -is important for the languagewhich it uses. It provides for any Magistrateof the first or second class being placed in charge of a sub-division and for being relieved of the charge whenever required. The plain meaning of Sub-sections (1) and (2) of Section 13 is that a first or second class Magistrate becomes a Sub-divisional Magistrate when he is placed in charge of a sub-division. The language of Section 13 (1) is quite different from that used in Section 10 or Section 12.

Whereas Section 10 provides that the State Government shall appoint a Magistrate of the first class to be the District Magistrate and that it may appoint other Magistrates of the first class as Additional District Magistrates, Section 13 (1) does not say that the Government shall place, is charge of a sub-division a Magistrate of the first or second class and shall appoint other Magistrates as Additional Sub-divisional Magistrates in sub-divisions or appoint as many Magistrates as it thinks fit to be Sub-divisional Magistrates.

It is plain from Section 12 that it has no reference whatsoever to Sub-divisional Magistrates. It deals with the appointment of subordinate Magistrates in a district and gives the Government power to define the local limits of their jurisdiction. Learned Government Advocate laid some stress on the provision in Section 12 (1), namely,

'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,'

and suggested that this provision enables the Government to confer the powers of a Sub-divisional Magistrate on any Magistrate. I do not agree. The aforesaid provision is only for limiting the local area within which a Magistrate of the first class or second class or third class may exercise the powers vested in him under the Code. The effect of that provision, read with Section 12 (2), is that unless the powers of a Magistrate have been restricted to a local area, his jurisdiction under Section 12 (2) extends over the whole district.

Under Section 33 (1), as it is worded, there is no question of defining the local limits of the jurisdiction of a Sub-divisional Magistrate or of his powers. A first or second class Magistrate becomes a Sub-divisional Magistrate when he is placed in charge of a sub-division and thereupon he automatically exercises jurisdiction throughout the sub-division and all the powers which are vested in him under Section 36 of the Code itself.

There is no provision in the Code with regard to the conferment of powers under Section 36j on any Magistrate by the Government. The powers under Section 36 of a Sub-divisional Magistrate are conferred by the Code itself. They are not conferrable on any Magistrate by any order of the Government, No doubt, under Section 37 the Government has the power to invest a Sub-divisional Magistrate with all or any of the additional powers specified in the fourth I Schedule.

But 'before these powers can be conferred ,on any Sub-divisional Magistrate, he must become a Sub-divisional Magistrate under Section 13 (1) by being placed in charge of a subdivision. It then a Magistrate of the first or second class can become a sub-divisional Magistrate only when he is placed in charge of a subdivision and if by the very nature of the administrative system of districts and sub-divisions there cannot be more than one person in charge of a sub-division --and this is not disputed--then it follows that there cannot he more thanone Sub-divisional Magistrate in any sub-division.

5. A reference was made at the bar to Section 17 of the Code. In my view that section does not in any way affect the conclusion that under Section 13 there can be only one Sub-divisional Magistrate in a sub-division. Sub-section (1) of Section 17 deals with the subordination of all Magistrates appointed under Sections 12, 13 and 14 and all Benches constituted under Section 15 to the District Magistrate. Sub-section (2) lays down :

'Every Magistrate {other than a Sub-divisional Magistrate) and every Bench exercising powers in a sub-division shall also be subordinate to the Sub-divisional Magistrate, subject, however, to the general control of the District Magistrate.'

6. The words 'other than a Sub-divisional Magistrate', which occur in Sub-section (2) cannot clearly be read as implying that there can be more than one Sub-divisional Magistrate in a sub-division and that Government have the power to appoint more than one Sub-divisional Magistrate in a sub-division, when Section 13 gives no such power. The words 'other than a sub-divisional Magistrate' have been obviously used to place it beyond doubt that the expression 'every Magistrate' in Sub-section (21 means all Magistrates excluding a Sub-divisional Magistrate.

The use of the article 'the' before the words 'Sub-divisional Magistrate' in Sub-section (2) particularise not one Sub-divisional Magistrate from a class of Sub-divisional Magistrates in a sub-division. That article has the effect of particularising the Sub-divisional Magistrate of that division in which Magistrates attached to a sub-division exercise powers.

7. In this connection it would be pertinent to point out that in the Bombay State Section 13 has been amended so as to enable the Government to appoint as many persons as it thinks fit to be Sub-divisional Magistrates and Taluq Magistrates in any district outside Greater Bombay. Along with this amendment, concomitant amendments have also been made in Section 17 and a new Section 17-A has been inserted. Section 1' has been amended so as to make all Magistrates appointed under _Sections 12 and 14 and all Benches constituted under Section 15 sub-bordinate to the Sessions Judge.

Sub-sections (2) and (5) of Section 1.7 have been deleted. The effect of Section 17-A in Bombay State is to make all executive Magistrates appointed under Sections 13 and 14 subordinate to the District Judge. The result of these amendments is that in Bombay State no Judicial Magistrate is appointed as Sub-divisional Magistrate and all executive Magistrates who are appointed as Sub-divisional Magistrates are subordinate to the District Magistrate. The fact that a necessity for this amendment was felt in Bombay State is not without significance.

It firstly shows that Section 13, as it stands, does not contemplate the appointment of more than one Sub-divisional Magistrate in a subdivision. Secondly it emphasizes the fact that the Code, as it stands, does not envisage a scheme of separation of judicial and executive functions being interpolated therein by merely making all Tchsildars and Judicial Magistrates to function as Sub-divisional Magistrates,

8. The question whether under Section 13 more than one Sub-divisional Magistrate can be appointed in a sub-division does not seem to be covered by any authority. The decision in Ram Krishna Sinha v. Emperor, AIR 1938 Cal 195 (A), which was cited by the learned Government Advocate, only lays down that it is competent for a District Magistrate to whom powers of the State Government have been delegated under Sub-section (3) of that section to appoint a Sub-divisional Magistrate for a particular period without relieving the permanent incumbent and that mere authority from the District Magistrate to be in charge of the Sub-divisional Magistrate's file at headquarters so long as he is on tour amounts to an appointment within the meaning of Section 13 though it is limited to a particular kind of work and to a particular occasion. It would seem that this decision proceeds on the basis that at one and the same time there cannot be two Sub-divisional Magistrates functioning in a sub-division. On the language of Section 13, the scheme of the Code and the system of the district administration, 1 have no hesitation in coming to the conclusion that under Section 13, Cr. P. C. there can be only one Sub-divisional Magistrate in a subdivision.

9. In this case, under the notification issued on 17th February, 1949, Mr. Sagne became the Sub-divisional Officer of Kolaras by virtue of his position as a Tehsildar. But on 12th May, 1954, the Government issued a notification placing Mr. Rathore in charge, of Kolaras Sub-division. On the view that under Section 13 (1), Cr. P. C. there can be only one Sub-divisional Officer in a sub-division, the necessary effect of the later notification issued by the Government in 1954 was to relieve Mr. Sagne of the charge as Sub-divisional Officer of Kolaras. Therefore, on 12th July, 1954, that is on the date the opponent presented the petition under Section 145, Cr. P. C. and Mr. Sagne made the prohibitory Order, Mr. Sagne not being a Sub-divisional Officer had no jurisdiction to take any action under Section 145, Cr. P. C. That order must, therefore, be quashed.

10. Learned Government Advocate also argued that it was not open to the petitioners to challenge the validity of the appointment of Mr. Sagne as Sub-divisional Officer and of the order made by him in these proceedings andthat the petitioners should have taken appropriate separate proceedings expressly for that purpose. He relied on the observations of Koshi, J. (as he then was) in Parameswaran Pillai v. State Prosecutor, AIR 1951 Trav Co 45 (B), that the right of a de facto Judge to hold his office is not open to question nor is his jurisdiction subject to attack in a collateral proceeding.

I do not find myself able to accept this contention. The Travancore case was one in which one of the grounds in a petition for leave to appeal to the Supreme Court under Article 134(1)(c) of the Constitution from a decision of the Chief Justice of the Travancore High Court, was that the Bench which head and disposed of the appeal was not properly constituted and was, therefore, incompetent to hear and decide the appeal.

Relying on a decision of the Appellate Division of the Ontario Supreme Court in Re Toronto Rly. Co. v. City of Toronto, (1919) 49 (Canadian)' DLR 547 (C), Koshi, J. held that the objection could not be entertained as the right of a de facto Judge to hold his office or his jurisdiction could not be questioned in a collateral proceeding. Shankaran, J. preferred to dispose of the objection on merits. In the Canadian case it was held that

'it is not open to attack in a collateral proceeding, the status of a de facto Judge, having at least a colourable title to the office and (hat his acts are valid is clear .......... 011principle and authority'.

That case went up in appeal to the Privy Council. The decision of the Ontario Supreme Court was reversed by the Privy Council on other points. With regard to the objection that die Canadian tribunal, from whose decision an appeal was. taken to the Ontario Supreme Court, was not validly constituted, and whether the objection could be raised in the proceedings before the tribunal or in the Ontario Supreme Court, the Privy Council only observed that the question was fully considered by the Supreme Court and was decided by that Court against the appellant, but that

'in consequence of the view taken by their Lordships on other points in the case, it became unnecessary for them to consider it; and accordingly the point was not argued before the Board, and their Lordships express no opinion upon it'.

The important question is as to what is a collateral attack. As Koshi, J. himself observed, there was serious controversy on this point in the case before him. But he thought that the Canadian case indicated that the attack in the case before him on the competency of the Bench of the High Court which decided the appeal was a collateral attack which the law did not permit. To me the matter does not appear to be so simple as one which can be dispersed of by in Canadian case that was decided on the basis on certain decisions of the American State Courts and when in 87 American State Rep. 416(D) itself collateral attack has been held to mean

'every proceeding in which the integrityof a judgment is challenged, except those made in the action wherein the judgment is rendered, or by appeals, and except suits brought to obtain decrees declaring judgment to be void ab initial.'

This would show that to attack the validity of an order or a judgment in an appeal on the ground that the subordinate Court giving that decision was not properly constituted is; not a collateral but a direct attack against the' judgment.

11. For all these reasons, I set aside the order dated 12-7-1954, of Mr. Sagne, Tahsildar and reject the opponent's petition under Section 145 Cr. P. C. presented before Mr. Sagne of the ground that he had no jurisdiction to entertain it.

V.R. Newaskar, J.

12. I agree with my learned brother Dixit,J. but would like to add a few words.

13. It is clear by reference to Section 13(1) and (2) that it is only a Magistrate who is placed in charge of a Sub-Division who will be called Sub-Divisional Magistrate. In Bombay where more than one Sub-Divisional Magistrates in a sub-division are contemplated the section is, superseded by a separate section by means of a amending Act (34 of 1953). Under that amended provision Sub-Divisional Magistrates are not confined to those who are placed in charge of a sub-division.

Power is conferred xenon the Government under that Section to appoint as many persons as it thinks fit to be Sub-Divisional Magistrates in any district and either the State Government or the District Magistrate subject to the control of the State Government is authorised to place any Sub-Divisional Magistrate in charge of a Sub-Division. It appears that a Sub-Divisional Magistrate there is taken to be a person appointed under Section 13 of the Act as amended and to whom powers of Sub-Divisional Magistrate as indicated in the Schedule 3 List IV are conferred.

It is not possible to take that as the definition of a Sub-Divisional Magistrate in view of Section 13 as it stands. The learned Government Advocate tried to make a distinction between a Magistrate of the First or Second Class who is placed in charge of a Sub-Division and a Magistrate like Tehsildar to whom powers of Sub-Divisional Magistrate are conferred and referred to Section 12 (1) as indicating that it is competent for the State Government to invest any person all or any of the powers with which a Magistrate of the First and Second Class may be invested.

He pointed out that language used with reference to Mr. Rathore and with respect to Tehsildars as a class was different. With respect to the former it is pointed out that the language of Section 13 (2) was used while with respect to the latter the language used was Tehsildars of all Parganas are invested with powers of Sub-Divisional Magistrates with jurisdiction over their respective Parganas.

14. I do not see anything in the provision and notification pointed out by the learned Government Advocate which would suggest that under the Code, as it stands, any distinction is made between a Magistrate of the First or Second Class placed in charge of a sub-division and a person invested with powers as a Sub-Divisional Magistrate. Powers indicated in the Schedule 3 Table IV are referable to Sub-Divisional Magistrates appointed under Section 33 and to no once. How then is it possible to connect those powers with any other person not appointed under Section 13 and who, for that reason, is not placed in charge of a sub-division?

15. The learned Government Advocate also emphasised the fact that the language of Section 17(2) and particularly the words 'other than a Sub-Divisional Magistrate' indicate two different kinds of Sub-Divisional Magistrates, one who is placed in charge of a Sub--Division and one who is invested with powers of such a Magistrate.

16. In view of the clear wording contained in Section 13 which, in a way, also defines the term and the provisions contained in Schedule 3(IV) all that can be said is that the words have been introduced by way of abundant caution and have proved useful as in the case of Bombay where Section 13 is amended.

17. I therefore agree with my learnedbrother Dixit J. that the effect of placing Mr.Rathore by a subsequent order in carge of the, sub-division in question was to deprived theTehsildar Mr. Sagne of his position as Sub-Divisional Magistrate which he occupied under anearlier order and that for that reason he had nolonger any jurisdiction to entertain a petitionunder Section 145 Criminal Procedure Code. I alsoagree that the order in question of Mr. Sagnedated 12-7-1954 ought to be set aside.


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