1. The Subordinate Judge of Delhi passed an order on 29-12-66 directing seizure of a truck (ORC 678), which was plying In the district of Bolangir, by Sri R.N. Suri, who was appointed receiver in the suit. On 31-12-65 the Subordinate Judge issued a letter of request to the District Magistrate, Bolangir, to assist Sri Suri in seizing the disputed truck. On 4-1-66 the Subordinate Judge, Bolangir, issued an order of injunction on Sri Suri and the Company in title Suit No. 4 of 1966 restraining them from interfering with the possession of the disputed truck. On 8-1-66 Sri Suri produced the letter of request before the District Magistrate, Bolangir, who, in his order indicates how he was put into a delicate and difficult situation by two orders contrary to each other. He has accordingly made the reference to this Court asking for the opinion of this Court as to what decision he would take.
2. The following questions arise for consideration in this reference;
(i) Is the reference maintainable under the Criminal Procedure Code? and
(ii) Is the proceeding before the District Magistrate, Bolangir, a proceeding under the Criminal Procedure Code?
3. A reference can be made by the District Magistrate either under Section 432 or 438, Cr. P. C. Section 432 has no application to this case even if the proceeding before the District Magistrate be taken as a criminal proceeding. its applicability therefore need not be examined.
4. Section 438, Sub-section (1) lays down feat the Sessions Judge or District Magistrate may, if he thinks fit, on examining under Section 435 or otherwise the record of any proceeding, report for the orders of the High Court the result of such examination. The section clearly refers to a criminal proceeding in which a reference is to be made. The proceeding that was pending before the District Magistrate, Bolangir, related to a request from the Subordinate Judge, Delhi, that the former would render police help to the Receiver in seizing the truck in question. The request was made to the District Magistrate not under the Criminal Procedure Code but in view of his powers under Section 4 of the Police Act, 1861. The second part of the section lays down that the administration of the police throughout the local jurisdiction of the Magistrate of the district shall, under the general control and direction of such Magistrate, be vested in District Superintendent and such Assistant District Superintendents as the State Government shall consider necessary. Under Rule 14 of the Orissa Police Manual, 1940, Vol. I, Chapter III, the District Magistrate, as the head of the criminal administration of the district and responsible for its efficiency, controls and directs the police, and, where necessity demands, has power, in consultation with the Superintendent, to make such dispositions of the force as are required for the maintenance of law and order and control of crime. It is because of this general control vesting in the District Magistrate over the police that the Subordinate Judge, Delhi, sent a letter of request to him to help the Receiver in seizing the disputed truck. The proceeding before the District Magistrate is not therefore a proceeding within its meaning under Section 438, Cr. P. C. However difficult and delicate the District Magistrates' position may be, he cannot make a reference to the High Court under Section 438, Cr. P. C. in a case of this nature.
5. Even in a criminal proceeding in which reference can be made under Section 438 the power of the District Magistrate or Sessions Judge is very very limited. In a pending proceeding before them, in no circumstance they can make a reference to the High Court to obtain its view even on the most complicated legal question. This is well settled by a series of decisions. In re Palani Gowden, AIR 1914 Mad 100(2) a learned Single Judge observed :
Section 438 was not intended to enable the District Magistrate to get the opinion of the High Court on a question of law arising in a case pending before him or to transfer the decision of a difficult case pending before him to the High Court.
The same view has been consistently taken and there is no conflict of authority on this point See In re Kotrappa. AIR 1949 Mad 11 and Chiranfi Lal v. Jabar Chand, AIR 1953 Madh B 149.
6. Thus the reference is misconceived both on the ground that the proceeding before the District Magistrate was not a criminal proceeding and secondly that even if it were a criminal proceeding and a complicated point of law was involved. It was not open to him to requisition the services of the High Court for clarifying the legal difficulty. He is to exercise his own discretion and judgment in a proper manner and any error that he is liable to commit is open to correction by superior courts.
7. In view of the aforesaid observations it is not necessary to express any view on merits. It may, however, be incidentally observed that there was no difficulty for the District Magistrate in deciding the matter. No complicated question of law was involved. The letter of request was produced before him on 8-1-66. By then the Subordinate Judge. Bolan-gir, had alreaddy issued an injunction order on 4-1-66. The District Magistrate could not give police help for seizure of the disputed truck in face of the injunction order.
8. There was no appearance either onbehalf of the State or of Sri Suri. Sri R.C.Patnaik was accordingly requested to examinethe matter and render his assistance to theCourt. I record my appreciation of his ableassistance. Subject to the aforesaid observations the reference is discharged Mr. Dasgupta invites my attention to an affidavit filedon 27-8-66 wherein he alleged that Sri Suriwas in contempt of this court I do not takenotice of this contempt in this reference. It isopen to Rameswar Das to file a separate application for contempt against Sri Suri and theDistrict Magistrate of Kalahandi if advised