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Sankarsan Nath Vs. Sachidananda Das - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in34(1968)CLT460; 1969CriLJ575
AppellantSankarsan Nath
RespondentSachidananda Das
Cases ReferredRam Chand v. Kanhayalal
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........to suspend orders of subordinate magistrates is not given to superior magistrates expressly by the code of criminal procedure and that power is sought to be passed by the public prosecutor on what is called the inherent power of the criminal courts to pass such orders as are necessary in the interest of justice. the authorities on this point, viz., the existence of inherent powers of criminal courts in the mofussil are not uniform and it would appear as if the weight of authority in this province is against the proposition that there is such an inherent power. section 144 permits any authority which has the power to rescind or alter an order to do so after hearing only the party who applies for it and this hearing can be completed without delay, and there is no particular reason why.....
Judgment:
ORDER

G.K. Misra, J.

1. There is a dispute in respect of a particular piece of land in village Kujang between Sachidananda Das and Krupasindhu. Patra. In Criminal Misc. Case No. 96 of 1967 in the Court of the S.D.O., Jagatsinghpur, Sachidananda (first party) obtained an, ex parte order on 26.6.1967 under Section 144(2), Cr.P.C. against Krupasindhu Patra (2nd party) who was called upon to show cause-by 16.8.1967 as to why the order should not be made absolute. The order was served on Krupasindhu Patra on 31st July 1967 at 11 a.m. Sankarsan Nath, the gumastha of Krupasindhu, filed an application under Section 144, Cr.P.C. before the same-S.D.O. in Criminal Misc. Case No. 97 of 1967 on 31.7.1967. The learned S.D.O again passed an ex parte order under Section 144(2) against Sachidananda and his father Adwait Charan Das calling upon them to-show cause by 16.8.1967 as to why the order should not be made absolute. Thus, Sachidananda and Krupasindhu were restrained from going upon the disputed land; in Cri. Misc. Cases Nos. 96 and 97 of 1967. On 2.8.1967 Sachidananda and his father-moved a petition before the S.D.O., for vacating the prohibitory order passed against them in Cri Misc. No. 97 of 1967. The S.D.O. directed the matter to be taken for hearing on 10.8.1967 after notice to Sankarsan. Sachidananda and his father without waiting till 10.8.1967, moved a petition before the Additional District Magistrate (Executive), Cuttack, in Cri. Misc. Case No. 52s of 1967 for altering or rescinding the ex. parte order dated 31.7.1967 passed against them in Cri. Misc. No. 97 of 1967 by the S.D.O. The learned Additional District Magistrate by his order dated 3.8.1967 suspended the operation of the order dated 31.7.1967 passed against Sachidananda and his father. The criminal revision is filed against this order of the A.D.M.

2. Under Section 144(6), Cr.P.C., no order under Section 144, Cr.P.C. shall remain in force for more than two months from the making thereof except in cases mentioned therein. Two months have already lapsed. The order under Section 144 is no longer in force. That apart, in Title Suit No. 175 of 1967 in the Court of the Munsif, Second Court, Cuttack, instituted by Adwait Charan Das against Krupasindhu Patra, an injunction order has been passed in favour of Adwait Charan Das on 18.8.1967 restraining Krupasindhu Patra from going upon the' land. As the injunction order is in force, there is no further apprehension of breach of the peace. The criminal revision has thus become infructuous. Ordinarily, the criminal revision would have been dismissed without further hearing.

3. Mr. Patnaik, however, contends that the order passed by the A.D.M. Cuttack, on 3.8.1967, suspending the order of the S.D.O. passed on 31.7.1967 in Cri. Misc. No. 97 of 1967 is without jurisdiction and contrary to law and that this Court should express its view on the legal question for future guidance of the Magistrates. There is some force in this contention inasmuch as any order under Section 144, Cr.P.C. shall not remain in force for more than two months under Section 144(6) and by the time any party gets the order set aside in revision, in most cases, the revision would be infructuous. It is meet and proper that this Court would lay down the law for future guidance of the Subordinate Magistrates.

4. This necessitates an examination of the scope of Section 144(4), Cr.P.C. which runs thus:

Any Magistrate may, either on his own motion or on the application of any person aggrieved, rescind or alter any order made under this section by himself or any Magistrate subordinate to him, or by his predecessor-in-office.

The sub-section enjoins that an order passed under Section 144 by any Magistrate can be rescinded or altered by himself or any Magistrate superior to him. Thus, a District Magistrate can rescind or alter any order passed under Section 144 by a Magistrate sub-ordinate to him. This rescission or alteration his, however, not in exercise of any appellate or revisional powers. The jurisdiction is a special one conferred by the section. On this point there is hardly any difference of opinion.

5. The sub-section does not make any provision that in intermediate or interlocutory order staying or suspending the operation of the original order can be passed by a Magistrate pending final orders of rescission or alteration. Mr. Patnaik contends that as there is no specific provision for suspension of the original order, the learned A.D.M. acted without jurisdiction on 3.8.1967 in passing the impugned order. Reliance is placed on (1906) 4 Cri LJ 433 (Cal), Satishchandra Roy v. Emperor. A Bench of the Calcutta High Court made the following observation:

But here the order of the 4th July had still legal operation and the intermediate orders not contemplated by Sub-section (4) could not be passed unless we take them to be new orders.

In AIR 1937 Mad 167, Mooka Pandaram v. Sinnu Muthiriran, a learned Single Judge observed thus:

A general power to suspend orders of subordinate Magistrates is not given to superior Magistrates expressly by the Code of Criminal Procedure and that power is sought to be passed by the Public Prosecutor on what is called the inherent power of the Criminal Courts to pass such orders as are necessary in the interest of justice. The authorities on this point, viz., the existence of inherent powers of Criminal Courts in the mofussil are not uniform and it would appear as if the weight of authority in this Province is against the proposition that there is such an inherent power. Section 144 permits any authority which has the power to rescind or alter an order to do so after hearing only the party who applies for it and this hearing can be completed without delay, and there is no particular reason why there should be stay or suspension before such hearing. It is not a case in which the other side is to be given notice and has to be heard. In all these cases under Section 144, it is really the liberty of the subject that is affected by the original order and though this interference might be made by the Magistrate at the instance of or when moved by some private individual, the superior authority can always rescind or alter the order without hearing the person at whose instance the original order was passed, the only limitation on his power being that he should hear the party who applies for rescission or alteration before declining to do so.

The aforesaid passage lays down two propositions: (i) the superior Magistrate or the Magistrate himself cannot pass an order suspending or staying the original order and (ii) a final order of rescission or alteration could be passed without hearing the party at whose instance the original order was passed.

It is not necessary to express any view on the correctness of the second proposition which does not arise in this case. So far as the first proposition is concerned, it is based on the theory that Section 144(4) makes no express provision conferring power on the Magistrate or the superior Magistrate to stay operation of the original order, and that the subordinate Criminal Courts not having any inherent powers, such an order cannot be passed in exercise thereof. This contention requires careful examination.

6. Section 144(4), in terms, confers no power to stay operation of the original order passed either under Section 144(1) or (2). The only question for consideration is whether such an order can be passed under Section 561A, Cr.P.C. which runs thus:

Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

The section thus confines itself only to inherent powers of the High Court. There is no other provision in the Code dealing with inherent powers of the subordinate Criminal Courts corresponding to Section 151, Civil Procedure Code, which lays down that nothing in that Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as are necessary for the ends of justice or to prevent abuse of the process of the Court. On account of this difference in the language in Section 151, Civil P.C. and Section 561A, Criminal P.C. some Courts have held that excepting the High Court, no other Court has inherent powers under the Criminal Procedure Code. The majority of the High Courts, including this Court, have, however, taken the view that the subordinate Criminal Courts have limited inherent powers despite the absence of an express provision. This is based on the juristic theory that Section 561A confers no new or extended power but saves the inherent power of the High Court which it already possessed. All Criminal Courts possess inherent powers to do real and substantial justice for which Courts exist. Every Court has the inherent jurisdiction to act rightly and fairly according to the circumstances towards all parties involved. The decisions of this Court are reported in ILR 1965 Cut 566, Rekha v. Manoranjan and (1960) 26 Cut LT 416, Hadibandhu v. Panchanan.

Even though the High Court has got inherent power under Section 561A, it can be exercised only for three of the propositions mentioned therein and it cannot be invoked if it would be inconsistent with any of the provisions of the Code. In : 1958CriLJ701 , Talab Haji Hussain v. Madhukar Purushottam Mondkar, their Lordships observed that inherent power conferred on High Court under Section 561-A has to be exercised sparingly, carefully and with caution and only -where such exercise is justified by the tests specifically laid down in the section itself. The procedure, whether criminal or civil, must serve the higher purpose of justice.

7. The test is still more rigorous in case of subordinate Criminal Courts. The legal position can be summed up by saying that the subordinate Criminal Courts have got inherent powers even though there is no express provision in the Code, and this power would be exercised sparingly, with caution and having due regard for the rigorous tests laid down in Section 561A.

8. Mr. Patnaik placed reliance on : [1966]3SCR856 , Ram Chand v. Kanhayalal in support of his contention that Section 144, Cr.P.C. is a complete topic by itself and by necessary implication the Court has no power to invoke Section 561A, Cr.P.C. The Supreme Court decision is one under Section 151, Civil Procedure Code. Their Lordships held that inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Civil Procedure Code, but that powers will not be exercised if its exercise is inconsistent with, or comes into conflict with, any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there are express provisions exhaustively covering a particular topic, they give rise to a necessary implication that no power shall be exercised in respect of the said topic otherwise than in the manner prescribed by the said provisions. Whatever limitations are imposed by construction on the provisions of Section 151 of the Code, they do not control the undoubted power of the Court conferred under Section 151 of the Code to make a suitable order to prevent the abuse of the process of the Court.

The principle so enunciated with reference to Section 151, Cr.P.C. applies equally to the exercise of inherent powers under the Criminal Procedure Code. The Question for consideration is whether Section 144, Cr.P.C. exhaustively covers a topic so as to give rise to a necessary implication that inherent powers cannot be exercised in respect of Section 144. According to me, it is not exhaustive.

9. It is well known how ex parte orders under Section 144(2), Cr.P.C, are dealt with. Till now such powers vest in Executive Magistrates who are least busy in judicial work and spend most part of their time in executive and administrative work. When a particular party approaches the Executive Criminal Courts, ex parte orders under Section 144(2) are most often passed mechanically without application of judicial mind. If the view is taken that once such an ex parte order is passed and the Magistrate himself or the District Magistrate cannot stay operation of such an order on justifiable grounds until final hearing, great injustice would work out. There is no provision in Section 144 itself as to how a party aggrieved by such an ex parte order under Section 144 would get interim relief when his cause is absolutely unassailable. Thus the express provisions in Section 144, Cr.P.C. and the manner in which the section is worked out sufficiently establish that it is not an exhaustive topic itself and in suitable cases, subject to the conditions already laid down, it is open to a Magistrate or a superior Magistrate to invoke inherent powers to grant interim reliefs necessary to prevent abuse of the process of Court. I am not impressed by Mr. Patnaik's argument that Section 144, Cr.P.C. is exhaustive in itself.

10. On the aforesaid analysis, it is not possible to accept the aforesaid two decisions relied upon by Mr. Patnaik as laying down the correct law. There is no discussion of exercise of inherent powers in the Calcutta case. The Madras ease is distinguishable as it proceeds on the basis that so far as that State is concerned, the subordinate Criminal Courts are taken to have no inherent powers.

11. As this Court has consistently taken the view that subordinate Criminal Courts have limited inherent power, the correct legal position is that the Magistrate or the superior Magistrate can pass an order staying operation of the original order passed under Section 144. This power is derived not from Section 144(4) but from the inherent powers of the subordinate Criminal Courts. As the order of stay is to be passed in exercise of inherent powers, it is to be exercised sparingly and cautiously and in the ends of justice. It cannot be used as a matter of course. An order of stay of operation of the original order passed in exercise thereof is to be quashed unless clear and convincing reasons are apparent on the face of the order granting stay.

12. As has already been stated, an injunction order has already been passed in favour of the opposite party and no useful purpose would be served by setting aside file impugned order, which does not indicate any cogent and convincing reasons. The criminal revision is accordingly dismissed.


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