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Harihar Ojha Vs. Laxmi Jena and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Revision No. 51 of 1956
Judge
Reported inAIR1959Ori116; 1959CriLJ884
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 4, 190, 192 and 432; Cattle Trespass Aact, 1871 - Sections 20; Contempt of Courts Act, 1952 - Sections 3; Code of Civil Procedure (CPC) , 1908
AppellantHarihar Ojha
RespondentLaxmi Jena and anr.
Advocates:Adv. General
Cases ReferredDeena Dayalu v. Ratna Padayachi
Excerpt:
.....(2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - unfortunately, the attention of the learned judge who decided ilr (1950) cut 149: (air 1951 orissa 40) was not drawn to these subsequent decisions and he relied on the old calcutta decision reported in ilr 23 cal 442. for the reasons already stated, with great respect, we are unable to accept that decision as correct, and following the later decisions of the calcutta, bombay and madras high courts, we would hold that the principle laid down in ilr 1950 cut 149: (air 1951 orissa 40) is no longer good law. 6. we are therefore satisfied that there are..........authorisation is necessary to empower magistrate to take cognizance under section 20 of the cattle trespass act. as such, the transfer of the case does not appear to be irregular. if the matter is challenged, it is open to the parties concerned to proceed according to law. i therefore do not see any reason for withdrawal of the case. the hearing may continue. sd. b.m. ghosesubdivisional magistrate, anandapur26-11-55. on receipt of this note the munsif magistrate thought that there was some conflict between the principle laid down in the decision reported in ilr 1950 cut 149: (air 1951 orissa 40) and the instructions given to the district magistrate, keonjhar, by the board of revenue in their letter quoted above, and hence referred the matter to this court under section 432, cr. p......
Judgment:

R.L. Narasimham, C.J.

1. This revision arises under the following circumstances:

2. A case under Section 20 of the Cattle Trespass Act was transferred by the Subdivisional Magistrate, of Anandpur, to the file of Shri D.P. Sharma, Munsif-Magistrate Anandpur, for hearing. That Magistrate, on 24-11-1955 returned the case to the Subdivisional Magistrate, observing that in view of the decision of a single Judge of this Court, reported in Padma Charan Behera v. Rangadhar Das ILR 1950 Cut 149: (AIR 1951 Orissa 40) he had no jurisdiction to try that case. Thereupon the Subdivisional Magistrate sent it back to him with the following note:

'The relevant ruling reported in ILR 1950 Cut 149: (AIR 1951 Orissa 40) is seen. Attention of the trying court is drawn to the communication from the Board of Revenue in their letter No. 351 (6) Genl. 11-29/55, dated 19-1-1955, forwarded by the Additional District Magistrate Keonjhar in his memo No. 1/12/55-1904(3) dated 8-2-1955, in which the opinion of the Legal Remembrancer is given.

It is evident from the instruction that no special authorisation is necessary to empower Magistrate to take cognizance under Section 20 of the Cattle Trespass Act. As such, the transfer of the case does not appear to be irregular.

If the matter is challenged, it is open to the parties concerned to proceed according to law. I therefore do not see any reason for withdrawal of the case. The hearing may continue.

Sd. B.M. Ghose

Subdivisional Magistrate, Anandapur

26-11-55.

On receipt of this note the Munsif Magistrate thought that there was some conflict between the principle laid down in the decision reported in ILR 1950 Cut 149: (AIR 1951 Orissa 40) and the instructions given to the District Magistrate, Keonjhar, by the Board of Revenue in their letter quoted above, and hence referred the matter to this court under Section 432, Cr. P. C.

3. Strictly speaking, a reference under Section 432 Cr. P. C. will not lie in a matter of this type, because that Section in terms applies only where there is a question regarding the validity of an Act, Ordinance, or Regulation. Here, there is no controversy about the validity of any provision of the Cattle Trespass Act, or of any provision of the Criminal Procedure Code. But as the matter has been brought to our notice we decided to exercise our jurisdiction under Section 439 Cr. P. C. for the purpose of examining the correctness of the decision in ILR 1950 Cut 149: (AIR 1951 Orissa 40).

4. Section 20 of the Cattle Trespass Act says that if a person's cattle had been seized in contravention of the provisions of the Act he may, within ten days from the date of seizure, make a complaint either (1) to the Magistrate of the District or (2) to any Magistrate authorized to receive and try charges without reference by the Magistrate of the District. It was held in an old decision of the Calcutta High Court of the year 1896, reported in Raghu Singh v. Abdul Wahab ILR 23 Cal 442 that a special authorization would be necessary before any Magistrate other than a District Magistrate can try a case under Section 20 of the Cattle Trespass Act.

As the Criminal Procedure Code stood then, the definition of the expression 'offence' as given in Section 4(p) may not include an act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act. But in the Criminal Procedure Code of 1898 the definition of the expression 'offence', as given in Section 4(o) was enlarged so as to include an act in respect of which a complaint may be made under Section 20 of that Act. Such an act was thus expressly made an offence under the Code itself and by virtue of Section 190 every Subdivisional Magistrate has the power to take cognizance of that offence and under Section 192 he can transfer the case to a subordinate Magistrate for trial.

In view of this amendment, the Calcutta High Court, in a later decision reported in Budhan Mahto v. Issur Singh ILR 34 Cal 926 pointed out that the principle laid down in ILR 23 Cal 442 had been overruled by the Legislature itself. This later Calcutta decision has been followed in Emperor v. Viswanath Vishnu ILR 44 Bom 42: (AIR 1920 Bom 85(1)) and in Deena Dayalu v. Ratna Padayachi ILR 50 Mad 841: (AIR 1927 Mad 396). Thus there is no doubt that an act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, will also amount to an 'offence' and the Subdivisional Magistrate has power to take cognizance of the same and transfer it to another Magistrate subordinate to him, for disposal.

Unfortunately, the attention of the learned Judge who decided ILR (1950) Cut 149: (AIR 1951 Orissa 40) was not drawn to these subsequent decisions and he relied on the old Calcutta decision reported in ILR 23 Cal 442. For the reasons already stated, with great respect, we are unable to accept that decision as correct, and following the later decisions of the Calcutta, Bombay and Madras High Courts, we would hold that the principle laid down in ILR 1950 Cut 149: (AIR 1951 Orissa 40) is no longer good law. The Subdivisional Officer of Anandpur was therefore justified in transferring the case to the Munsif-Magistrate for trial. If the munsif-magistrate has been transferred from the place, the Subdivisional Magistrate may send the case to another competent Magistrate for expeditious disposal.

5. But before concluding this revision we are constrained to point out that the language used by the Under-Secretary to the Board of Revenue, Sambalpur, Shri D. Satapathy, in his Circular letter No. 351(6) Gen. 11-29/55, dated 19-1-55 to all the District Magistrates of the Northern Division, is highly improper and may, prima facie, amount to contempt of this Court. I am giving below an extract from that letter.

'I am directed to enclose copies of opinions of the Legal Remembrancer and of the Advocate-General and to say that the Law Department are of opinion that no special authorization is necessary to empower Magistrate to take cognizance under Section 20 of the Cattle Trespass Act. This may be followed until the matter is carried to the High Court in some case so that the confusion created by the Orissa High Court decision reported in AIR 1951 Orissa 40 might be set at rest'.

The Under-Secretary has referred to 'the confusion created by the Orissa High Court decision'. There was, in fact, no confusion at all. The decision may be right or wrong, but it is quite clear and unambiguous. There has been no subsequent decision of this Court, either of a single Judge or of a Division Bench, till now, to the contrary. All persons within the State of Orissa are bound to follow the decisions of this Court until they are subsequently over-ruled either by a larger Bench of this Court, or by a decision of the Supreme Court, or by an enactment passed by the Legislature. Along with the Circular letter Shri Satapathy has enclosed copies of the opinions given by the Legal Remembrancer Shri Gopabandhu Misra and the Advocate-General Shri Banchanidhi Mohapatra, in which the aforesaid single Judge decision of this Court in ILR 1950 Cut 149: (AIR 1951 Orissa 40) was commented upon. Shri Gopabandhu Misra in his final noting, dated 24-11-1954 has stated as follows:

'For the reasons given by this department at pages 3-6/N they agree with the view of the Advocate-General at A at page 6/N and advise the Board accordingly. They also agree with his suggestions that the matter should be carried to the High Court in some case, so that the confusion might be set at rest'.

Presumably, the Under-Secretary to the Board of Revenue has in his letter addressed to the District Magistrates, borrowed the language from the aforesaid noting of the Legal Remembrancer. Though notings in Secretariat files may be confidential, once copies of such notings are taken out and circulated. they cease to be confidential and any remarks therein which are, prima facie, derogatory to the dignity, of this Court, may amount to contempt.

6. We are therefore satisfied that there are prima facie grounds for calling upon Shri D. Satapathy, Under-Secretary Board of Revenue, Orissa, Sambalpur and Shri Gopabandhu Misra, Legal Remembrancer, Government of Orissa, to show cause why they may not be committed for contempt, for the language used by the former in the Circular letter No. 351(6) Genl. 11-29/55 dated 19-1-1955 and by the latter in his noting dated 24-11-1954. Notices may issue accordingly.

G.C. Das, J.

7. I agree.


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