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Administrator, Municipal Corporation Vs. Rafique Ahmad and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1975CriLJ1637
AppellantAdministrator, Municipal Corporation
RespondentRafique Ahmad and anr.
Cases ReferredTata Oil Mills Co. Ltd. v. The Workmen
Excerpt:
.....not invested with wide powers of issuing injunctions like civil courts and therefore, they must function within the scope of powers conferred by the code, 7. in the absence of any specific provision conferring power on a magistrate to issue injunction in a matter like this, we have to consider whether such an injunction could be issued by the court in exercise of its inherent jurisdiction, it is no doubt true that section 561-a of the code of criminal procedure merely saves the inherent powers of the high court and is silent with regard to any such powers possessed by subordinate courts. the state air 1950 madh bha 17 :1956 cri lj 66. 8. the inherent powers can, however, be invoked only in exceptional cases where it is necessary to do so in the interest of justice there being no other..........be governed by the old code of criminal procedure. admittedly there was no provision in the old code empowering the magistrate to issue an injunction of this nature. there is also no such provision in the new code. the power of the criminal courts or the magistrates to grant injunctions or prohibitory orders is extremely limited under section 142 of the old code & magistrate can issue an injunction if he considers that immediate measures are necessary to prevent imminent danger or injury of a serious kind to the public. under section 144 the district magistrate or sub-divisional magistrate or a magistrate specially empowered can issue prohibitory orders to prevent continuance of public nuisance or in urgent cases of nuisance or apprehended danger. criminal courts are not invested with.....
Judgment:
ORDER

S.M.N. Raina, J.

1. This is a revision petition under Section 439 of the Code of Criminal Procedure against the order dated 28-1-1973 passed by Magistrate First Class, Bhopal in a Misc. Criminal Case.

2. The non-applicant Rafique Ahmad is an employee of the Municipal Corporation, Bhopal (hereinafter referred to as 'the Corporation'). On a report made by the Corporation against the non-applicant Rafique Ahmad, the police has registered an offence under Section 409 of the Indian Penal Code for committing criminal breach of trust in respect of the funds of the Corporation. The non-applicant was arrested on 18-11-1972 and the investigation is still proceeding. No challan has, however, been filed so far by the police against the non-applicant.

3. On 23-10-1972, the non-applicant was suspended by the Corporation and departmental enquiry was commenced against him. He has been served with a charge-sheet and has been called upon to explain the charges against him. On 11-1-1973 the non-applicant filed an application before the Magistrate for restraining the applicant from continuing the departmental enquiry against him on the following grounds:

(i) The departmental enquiry and the criminal prosecution would be on the same facts.

(ii) Continuance of the enquiry would obstruct and interfere with the cause of justice and would also prejudice his defence.

4. The application was opposed by the Corporation but it was allowed by the learned Magistrate and he issued an injunction directing the Corporation not to insist on the explanation of the non-applicant on the points covered by the police report during the pendency of the investigation and the subsequent trial of the case, if any. Being aggrieved by this order the Corporation filed a revision petition in the Court of Session, but it was dismissed by the Additional Sessions Judge, Bhopal. The Corporation has, therefore, come up in revision before this Court.

5. The main point for consideration in this case is whether the Magistrate was competent to issue an injunction of this nature.

6. As the order in question was passed on 28-2-1973 the matter would be governed by the old Code of Criminal Procedure. Admittedly there was no provision in the old Code empowering the Magistrate to issue an injunction of this nature. There is also no such provision in the new Code. The power of the criminal Courts or the Magistrates to grant injunctions or prohibitory orders is extremely limited Under Section 142 of the old Code & Magistrate can issue an injunction if he considers that immediate measures are necessary to prevent imminent danger or injury of a serious kind to the public. Under Section 144 the District Magistrate or Sub-Divisional Magistrate or a Magistrate specially empowered can issue prohibitory orders to prevent continuance of public nuisance or in urgent cases of nuisance or apprehended danger. Criminal Courts are not invested with wide powers of issuing injunctions like Civil Courts and therefore, they must function within the scope of powers conferred by the Code,

7. In the absence of any specific provision conferring power on a Magistrate to issue injunction in a matter like this, we have to consider whether such an injunction could be issued by the Court in exercise of its inherent jurisdiction, it is no doubt true that Section 561-A of the Code of Criminal Procedure merely saves the inherent powers of the High Court and is silent with regard to any such powers possessed by subordinate Courts. But this does not mean that subordinate Courts cannot when necessary exercise inherent powers. It is an established proposition of law that Courts of Justice must possess inherent powers apart from the powers expressly conferred on them by the provisions of law which are necessary to their existence and the proper discharge of duties imposed upon them by law. Criminal Courts have an inherent power to make such orders as may be necessary for the ends of justice. But this inherent power is not to be capriciously or arbitrarily exercised. It is to be exercised ex debito justice to do real and substantial justice for tine administration of which alone Courts exist. While exercising this power the Court must be careful to see that its decision is based on sound general principles and is not in conflict with any statutory provision because a Court has no inherent power to do that which is prohibited by the Code, vide Akhil Bandhu Ray V. Emperor AIR 1938 Gal 258 - 39 Cri LJ 596 and Hariram v. The State AIR 1950 Madh Bha 17 : 1956 Cri LJ 66.

8. The inherent powers can, however, be invoked only in exceptional cases where it is necessary to do so in the interest of justice there being no other remedy open to the party aggrieved. The power cannot be invoked so as to interfere with the statutory rights of the parties.

9. Under Section 60 of the Madhya Pradesh Municipal Corporation Act, the Corporation is competent to impose penalties including removal or dismissal of servants for good and sufficient reasons. This is a statutory power and it is obvious that the Corporation has instituted departmental enquiry, against the non-applicant in exercise of this power.

10. There is no statutory bar to institute departmental enquiry against an employee for misconduct which is also the subject-matter of a criminal charge. No doubt in Delhi Cloth and General Mills Ltd. v. Kushal Bhan AIR 1960 SC 806 their Lordships made the following pertinent observations in connection with a departmental action against an employee facing criminal charge for misconduct:

It is true that very often employers stay enquiries pending the decision of the Criminal Trial Courts and that is fair; but we cannot say that principles of natural justice require that an employer must wait for the decision at least of the criminal trial Court before taking action against an employee, in Bimal Kanta Mukherjee v. Newsman's Printing Works 1956 Lab AC 188 (LATI-Cal) this was the view taken by the Labour Appellate Tribunal. We may, however, add that if the case is of a grave nature or involves questions of fact or Law, which are not simple, it would be advisable for the employer to await the decision of the trial Court, so that the defence of the employee in the criminal case may not be prejudiced.

Similar observations were made by their Lordships in Tata Oil Mills Co. Ltd. v. The Workmen AIR 1965 SC 155. These are weighty observations entitled to consideration by the employers; but they do not suggest that it is open to a criminal Court to issue an injunction restraining an employer from taking departmental action against the employee merely because he is facing or is likely to face a criminal charge on the basis of some misconduct.

11. We must further bear in mind that in this case even a police challan has not been presented and, therefore, the Magistrate has not yet taken cognizance of the case. Shri N. S. Kale, learned Counsel for the petitioner-Corporation submitted that the Corporation waited for a sufficiently long time for the challan to be presented; but when there was undue delay, it decided to proceed with the departmental action against the non-applicant The action taken by the Corporation thus appears to foe bona fide and is within the exercise of its statutory power. It was, therefore, highly improper for the Magistrate to issue an injunction of this nature. The impugned order is not only improper but also without jurisdiction and is, therefore, liable to be quashed.

12. The petition is, therefore, allowed and the impugned order is hereby quashed and set aside.


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