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Haji Shaik Hyder Ali and anr. Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revn. No. 63 of 1967
Judge
Reported in1971CriLJ481
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 10, 10(2), 10(3), 12, 13, 14, 514 and 515
AppellantHaji Shaik Hyder Ali and anr.
RespondentState
Appellant AdvocateP. Palit, Adv.
Respondent AdvocateGovt. Adv.
Cases ReferredKanpur v. Dwaraka Prasad
Excerpt:
.....executed by them should not be forfeited. if, therefore, the expression 'magistrate other than a district magistrate' in section 515 covers an additional district magistrate and an order passed under section 514 by the additional district magistrate is appealable, then clearly the words 'district magistrate' in the expression 'shall be appealable to the district magistrate' cannot include an additional district magistrate, because in that case it would be empowering an additional district magistrate to hear an appeal from his own order. 6. in our view, the power to hear an appeal conferred on the district magistrate under section 515 of the code is a judicial power, and we fail to see why an additional district magistrate, on whom are conferred all the powers of a district magistrate..........such order would lie to the district magistrate, and (2) where an order under section 514 of the code is passed by a magistrate other than the district magistrate or the additional district magistrate, whether an appeal against such order can be entertained and disposed of by an additional district magistrate on whom all the powers of the district magistrate under the code are conferred by section 10(2) of the code. 3. section 515 of the code runs thus:-- 'all orders passed under section 514 by any magistrate other than a presidency magistrate or district magistrate, shall be appealable to the district magistrate, or if not so appealed, may be revised by him.' 4. it is argued by mr. palit, learned counsel appearing for the petitioners, relying on kaluram v. state of madhya bharat. air.....
Judgment:

Patra, J.

1. The petitioners were sureties for one Saikh Ahmed of Calcutta who was standing trial in G. R. Case No. 4 of 1964 in the court of the Addl. District Magistrate (Judicial), Cuttack, on a charge under Section 420, I.P.C. and Section 27 of the Drugs Act, and executed bail bonds for Rs. 5,000/-. As thereafter the accused person failed to appear in the court on the date fixed, notices were issued to the petitioners to show cause why the bail bonds executed by them should not be forfeited. After they showed cause the learned Additional District Magistrate (Judicial) considered the same and passed an order under Section 514(5) Cr. P. C. forfeiting the bonds. Against this order of the learned Additional District Magistrate (Judicial), an appeal was filed in the court of the District Magistrate, Cuttack, who being of the view that the expression 'District Magistrate' in Section 515, Cr. P. C. includes an 'Additional District Magistrate (Judicial)', held that he had no jurisdiction to hear the appeal. It is the correctness of this view of the District Magistrate that is challenged in the present revision application. As the question involved in this case is of some importance, especially having regard to the scheme of separation of Judiciary from the Executive which is in operation in the State and as there is some divergence of judicial opinion on this issue, this case which initially came up for hearing before a learned Single Judge of this Court had been referred by him to a Division Bench which in its turn referred the matter to a Full Bench. This is how the matter has come up before us for disposal.

2. The two questions that arise for determination are:--

(1) Where under Section 10(2) of the Criminal Procedure Code (hereinafter referred to as the Code) all the powers of a District Magistrate under the Code are conferred on a Additional District Magistrate, and such Additional District Magistrate passes an order under Section 514 of the Code, whether an appeal against such order would lie to the District Magistrate, and

(2) Where an order under Section 514 of the Code is passed by a Magistrate other than the District Magistrate or the Additional District Magistrate, whether an appeal against such order can be entertained and disposed of by an Additional District Magistrate on whom all the powers of the District Magistrate under the Code are conferred by Section 10(2) of the Code.

3. Section 515 of the Code runs thus:--

'All orders passed under Section 514 by any Magistrate other than a Presidency Magistrate or District Magistrate, shall be appealable to the District Magistrate, or if not so appealed, may be revised by him.'

4. It is argued by Mr. Palit, learned counsel appearing for the petitioners, relying on Kaluram v. State of Madhya Bharat. AIR 1951 Madh B 67, that the term 'District Magistrate' occurring in Section 515 does not include an 'Additional District Magistrate'. His contention is this:--

The words 'Magistrate other than a District Magistrate' occurring in Section 515 of the Code are significant. An Additional District Magistrate, though he may have all the powers of a District Magistrate under the Code, is still 'a Magistrate other than a District Magistrate' because the Code of Criminal Procedure contemplates only one person as District Magistrate. If, therefore, the expression 'Magistrate other than a District Magistrate' in Section 515 covers an Additional District Magistrate and an order passed under Section 514 by the Additional District Magistrate is appealable, then clearly the words 'District Magistrate' in the expression 'shall be appealable to the District Magistrate' cannot include an Additional District Magistrate, because in that case it would be empowering an Additional District Magistrate to hear an appeal from his own order. He therefore, contends that the expression 'District Magistrate' occurring in Section 515 cannot include an Additional District Magistrate even though he has been conferred with all the powers of a District Magistrate under the Code. Consequently, according to him, it is the District Magistrate alone who is competent to hear the appeal under Section 515 even though the order under appeal is one passed by an Additional District Magistrate empowered under Section 10(2) of the Code with all the powers of a District Magistrate. In support of his contention, he referred to two other decisions namely--M. A. Gaffur v. State of Assam, AIR 1953 Assam 96; and Ijat Ali v. The State, AIR 1965 Tripura 14. Both the learned Judges who decided the two cases, more or less, assumed that the expression 'District Magistrate' in Section 515, Cr. P. C. does not include an Additional District Magistrate. The question that came up for consideration before a Division Bench of the Calcutta High Court in Bholanath Ghosh v. The State, AIR 1967 Cal 440, referred to by Mr. Palit, related to the question whether an appeal under Section 515 of the Code can be entertained by an Additional District Magistrate empowered under Section 10(2). Following the view expressed by the Madhya Bharat High Court, the learned Judges held that such an appeal cannot be filed in the court of the Additional District Magistrate, for the simple reason that it would lead to an anomaly inasmuch as if the order under Section 514 is passed by the Additional District Magistrate himself, an appeal against his own order would be filed before him. Their Lordships, however, conceded that if an appeal is filed in the court of the District Magistrate, he can transfer it for disposal to an Additional District Magistrate who is duly empowered under Section 10(2) of the Code.

5. We have carefully perused the reasoning adopted in the Madhya Bharat and the Calcutta cases referred to above and find ourselves unable to adopt the view expressed therein.

6. In our view, the power to hear an appeal conferred on the District Magistrate under Section 515 of the Code is a judicial power, and we fail to see why an Additional District Magistrate, on whom are conferred all the powers of a District Magistrate under the Code, which in the absence of any words of limitation must be deemed to include also the power under Section 515, cannot under that section exercise all the powers that District Magistrate can exercise. We find nothing in Section 515 to cut down the amplitude of the powers conferred on the Additional District Magistrate under Section 10(2) of the Code. The argument that such an interpretation would lead to an anomaly in that an appeal against an order under Section 514 passed by an Additional District Magistrate would lie to his very court, is to ignore the obvious, namely that such a contingency is also likely to arise, if instead of the Additional District Magistrate, it is the District Magistrate who passes the order under Section 514. The answer to this line of reasoning is that the same consequences as would ensue in a case where the District Magistrate has passed the order under Section 514 would also ensue in such a case and in that event no appeal would lie and the correctness of the order would have to be challenged in revision in the High Court.

7. Section 17 of the Code deals with subordination of Magistrates and Benches to the District Magistrate and provides that all Magistrates appointed under Sections 12, 13 and 14 and all Benches constituted under Section 15 of the Code shall be subordinate to the District Magistrate. An Additional District Magistrate who is not appointed under any of the aforesaid sections, but under Section 10, is therefore not judicially subordinate to the District Magistrate, except to the extent indicated in Sub-section (3) of Section 10. Sub-section (1) of that section provides for appointment of a District Magistrate. Sub-section (2) provides that the State Government may appoint any Magistrate of the First Class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under the Code or under any other law for the time being in force as the State Government may direct. Then follows Sub-section (3) which says that for the purposes of Section 192, Sub-section (1) and Section 528, Sub-sections (2) and (3), such Additional District Magistrate shall be deemed to be subordinate to the District Magistrate. That this subordination to a limited extent has to be secured by a deeming clause, supports the view that for all other judicial purposes, the Additional District Magistrate exercising powers of a District Magistrate under the Code is not subordinate to the District Magistrate. They exercise coordinate powers, the one not interior to the other so far as judicial powers are concerned, except to the extent indicated in Sub-section (3) of Section 10 of the Code. This circumstance strengthens our view that the expression 'District Magistrate' occurring in Section 515 includes an 'Additional District Magistrate' duly empowered under Section 10(2), and that consequently such an Additional District Magistrate cannot only entertain and hear an appeal under Section 515, but also that when such Additional District Magistrate passes an order under Section 514, an appeal against that order would not lie to the District Magistrate. It is in accordance with this view that a learned Single Judge of the Calcutta High Court in Narayan Chandra v. The State, AIR 1967 Cal 314, upheld an order passed by an Additional District Magistrate duly empowered under Section 10(2) who heard an appeal under Section 515 of the Code after rejecting the contention that he had no power to hear such an appeal.

8. The question of construction to be placed on Section 10 of the Code came up before the Supreme Court in Central Talkies Ltd., Kanpur v. Dwaraka Prasad, AIR 1961 SC 606, which is a case relating to Section 3 of the United Provinces (Temporary) Control of Rent & Eviction Act. 1946, Section 3 thereof ran thus:--

'No suit shall, without the permission of the District Magistrate, be filed in any Civil Court against a tenant for his eviction from any accommodation except on one or more of the following grounds:-- x x x x'

A landlord of certain premises applied tothe District Magistrate for permission to eject the Central Talkies Limited from the premises and permission was granted by the Additional District Magistrate who under Section 10(2) of the Code had been vested with all the powers of the District Magistrate under the said Code and under any other law for the time being in force. The expression 'District Magistrate' in the United Provinces (Temporary) Control of Rent & Eviction Act, 1946 included an officer authorised by the District Magistrate to perform any of his functions under the Act. Admittedly, the Additional District Magistrate had not been so authorised by the District Magistrate and it was contended before their Lordships that in the absence of such authorisation, the permission granted by the Additional District Magistrate is not valid. Their Lordships repelled this contention and held that the notification under Section 10(2) of the Code invested the Additional District Magistrate with all the powers of a District Magistrate under the Code of Criminal Procedure as well as under any other law for the time being in force and the Additional District Magistrate was, therefore, competent to deal with an application under Section 3, of the Act for permission to file a Civil Suit without special authorisation from the District Magistrate.

9. We would therefore, answer the two questions as follows:

(1) An Additional District Magistrate who is invested with all the powers of a District Magistrate under the Code can entertain and hear an appeal under Section 515 against any order passed by a Magistrate other than himself; and

(2) Where such an Additional District Magistrate himself passes an order under Section 514, no appeal against such order can be entertained and heard by the District Magistrate.

10. In the present case, however, we find that Shri M. J. Rao, the Additional District Magistrate (Judicial), Cut-tack who passed the order under Section 514, Cr. P. C. had not been vested with any of the powers of the District Magistrate under the Code. The notification may be extracted.

'HOME DEPARTMENT

NOTIFICATION:

The 12th May, 1964.

No. 12992-HC. -- Shri M. J. Rao, Subordinate Judge. Bolangir, on transfer, is posted as an Additional District Magistrate (Judicial) in the District of Cuttack, with headquarters at Cuttack.

In exercise of the powers conferred by Sub-section (1) of Section 12, Cr. P. C. 1898 (Act V of 1898), the State Government do hereby invest Shri M. J. Rao with powers of the Magistrate of the First Class in the District of Cuttack.

In exercise of the powers conferred by Sub-section (2) of Section 10 of the said Code, the State Government do hereby appoint Shri M. J. Rao, Magistrate First Class to be an Additional District Magistrate in the District of Cuttack and direct that he shall exercise all the powers of the District Magistrate under all other laws for the time being in force.'

It may be, as the trend of the notification shows, that it was a sad lapse on the part of the Government in issuing the notification that the powers of the District Magistrate under the Code had not been conferred on Shri M. J. Rao, specially having regard to the fact that the Government have been conferring such powers on all those who are appoint- ed as Additional District Magistrate (Judicial). None-the-less, the fact remains that the powers of the District Magistrate under the Code had not been conferred on Shri Rao with the result that so far as the Code of Criminal Procedure is concerned, he was only a Magistrate of the First Class. That being the position, an appeal against an order passed by a Magistrate, First Class, lay to the District Magistrate. Obviously, the learned District Magistrate who passed the order under revision was under the impression that, as was usually the practice Shri Rao had been vested with all the powers of a District Magistrate and being under such impression, he refused to hear the appeal on the ground that ho had no jurisdiction to do so. Although his view on the point of law is correct, it was based on a wrong assumption of facts, and therefore, cannot be upheld. While, therefore, allowing this application and setting aside the order passed by the learned District Magistrate, we would have normally asked him to hear and dispose of the appeal. We are, however, conscious of the fact that for about a decade the scheme of separation of Judiciary from the Executive has been in force in the State. One of the objects of the scheme is to ensure that the District Magistrate would not exercise any judicial control over the Judicial Magistrates including the Additional District Magistrate (Judicial). This is at present ensured by issue of Executive Instructions by the Government. Such Instructions from the very nature are not statutory and cannot be legally enforced. States like Maharashtra had by necessary amendment of the Criminal Procedure Code, placed the scheme of separation on a statutory footing and it is time that similar steps are taken by the State Government here.

11. In the result, we would allow this application, set aside the order passed by the learned District Magistrate and remit the case to the learned Additional District Magistrate (Judicial)--(Shri M. J. Rao has, in the meanwhile, been transferred and the present Additional District Magistrate has been vested with all the powers of a District Magistrate under the Code)--, for disposal of the appeal according to law.

G.K. Misra, C.J.

12. I agree.

R.N. Misra, J.

13. I agree.


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