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Gurdit Singh Bishan Singh Vs. the District Magistrate, Jullundur - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Writ No. 5 of 1953
Judge
Reported inAIR1953P& H242
ActsConstitution of India - Article 226
AppellantGurdit Singh Bishan Singh
RespondentThe District Magistrate, Jullundur
Appellant Advocate H.S. Gujral, Adv.
Respondent Advocate N.L. Salooja, Adv.
DispositionApplication dismissed
Excerpt:
.....under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - , the district magistrate said on 6-3-1952 :in view of the fact that the magistrate cannot order the police to charge-sheet any person, particularly in a case like this, where the police had already investigated the case and sent up a challan to the court for trial proceedings the proper procedure, therefore, appears to be that the magistrate should take action himself by taking cognizance of the case if he finds the same necessary. ' 8. in order to found an..........ordering the district magistrate, jullundur district, to prosecute head constable charan das and foot constables chanansingh, jagat singh and dharam singh for causing the death of banta singh.2. briefly summarised, the facts are these. in august 1951, criminal case no. 576/1 of 1951 was put in court against gurdit singh and balla singh under sections 393 and 397, penal code, hereinafter referred to as the code, on the basis of the report made by head constable on 15-2-1951. on 14-7-1952, sardar jaspal singh, section 30 magistrate, jullundur, charged gurdit singh and balla singh under section 394 read with section 398 of the code. that charge reads :'that you, on or about the night between 15/16-2-1951, on the nakodar mehatpur road near village malowal along with banta singh deceased.....
Judgment:
ORDER

Harnam Singh, J.

1. Gurdit Singh applies under Article 226 of the Constitution of India for the issuance of writ of 'mandamus' ordering the District Magistrate, Jullundur district, to prosecute Head Constable Charan Das and Foot Constables ChananSingh, Jagat Singh and Dharam Singh for causing the death of Banta Singh.

2. Briefly summarised, the facts are these. In August 1951, Criminal case No. 576/1 of 1951 was put in Court against Gurdit Singh and Balla Singh under Sections 393 and 397, Penal Code, hereinafter referred to as the Code, on the basis of the report made by Head Constable on 15-2-1951. On 14-7-1952, Sardar Jaspal Singh, Section 30 Magistrate, Jullundur, charged Gurdit Singh and Balla Singh under Section 394 read with Section 398 of the Code. That charge reads :

'That you, on or about the night between 15/16-2-1951, on the Nakodar Mehatpur road near village Malowal along with Banta Singh deceased attempted to commit robbery of the property of P. W. Charan Das and his companions and that as such you or Banta Singh deceased voluntarily caused hurt to Charan Das and Chanan Singh P. Ws. and that at the time of the attempt at robbery Banta Singh was armed with a pistol, Balla Singh with a spear and Gurdit Singh with a 'lathi' and thereby committed an offence punishable under Ss. 394/398, Penal Code, and within my cognizance.'

3. In paragraphs 1, 2 and 3 of the application, under Article 226 of the Constitution Gurdit Singh maintains that Head. Constable Charan Das and Foot Constables Chanan Singh Jagat Singh and Dhsram Singh caused the death of Banta Singh on the night between 15 and 16-2-1951, that the post mortem examination on the body of Banta Singh disclosed that the injuries suffered by Banta Singh were sufficient in the ordinary course of nature to cause his death and that criminal case No. 576/1 of 1951 was put up against the applicant and Balla Singh to screen the offenders, who caused the death of Banta Singh.

4. 'Sardar' Bakhshish Singh, Magistrate 1st Class, Jullundur, was ordered by the District Magistrate, Jullundur, to hold enquiry under Section 176, Criminal P. C. into the cause of the death of Banta Singh. in the concluding portion of the order passed on 18-6-1951, the Magistrate said: 'From the evidence produced before me I find, that Charan Das Head Constable, Jagat Singh Foot Constable, Dharam Singh Foot Constable and Chanan Singh Foot Constable are liable for committing culpable homicide not amounting to murder as they had caused such bodily injuries, to the deceased Banta Singh as were likely in pursuance to their common intention to cause his death. There is a 'prima facie' case under Section 304 Part I, Penal Code made out against all of these. I therefore order that Charan Das Head Constable, Jagat Singh Foot Constable, Dharam Singh Foot Constable and Ghanan Singh Foot Constable be charged under Section-304 Part I, read with Section 34, Penal Code to stand their trial.'

5. Tn dealing with the order passed fay the Magistrate under Section 176, Criminal P. C., the District Magistrate said on 6-3-1952 : 'In view of the fact that the Magistrate cannot order the police to charge-sheet any person, particularly in a case like this, where the police had already investigated the case and sent up a challan to the Court for trial proceedings the proper procedure, therefore, appears to be that the Magistrate should take action himself by taking cognizance of the case if he finds the same necessary. The report of the 'Ilaca' Magistrate should, therefore, be returned to him with the direction that as under the law the police cannot be directed to charge-sheet any person he-should take whatever action he deems necessary on the report and as is allowed under the law.'

6. No complaint has so far been put in Court stating the facts which constitute the offence.

7. Section 190 CD, Criminal P. C., provides: 'Section 190. (1) Except as hereinafter provided, any Presidency Magistrate, District Magistrate or sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police officer;

(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion that such offence has been committed.'

8. In order to found an application for 'mandamus' there ought to be a specific legal right, as well as the want of a specific legal remedy. In the present case the remedy is in applicant's own hand for if the applicant makes a complaint of facts which constitute the offence, the District Magistrate would be bound to receive the complaint and deal with that complaint according to law. That being the position of matters, I refuse to enforce the law of the land by the extraordinary remedy of a writ of 'mandamus'.

9. Basics himself on -- 'In re Laxminarayan Timmanna Karki', A. I. R. 1928 Bom 390 (A)., Sardar Harbans Singh urges that the remedy by way of writ of 'mandamus' is the proper remedy in such cases.

10. In -- 'A. I. R. 1928 Bom 390 (A)', the facts were these. Mr. Karki, Second Class Magistrate, was holding an enquiry into the cause of death of one Rama when the Collector of Kanara instituted a departmental enquiry into the circumstances connected with the exhumation of the dead body of Rama under the orders of the Magistrate and into the propriety of acts done by the Magistrate in connection therewith. The result of the departmental enquiry was that tho enquiry under Section 176, Criminal P. C. was stopped and Mr. Karki was required to be present during the departmental enquiry. In dealing with the matter Mirza J. said :

'We direct, therefore, that the District Magistrate may be requested as far as possible himself to complete this enquiry under Section 176 read with Section 174, take all possible steps to ascertain who the probable offenders in respect of Rama's death and nose cutting may be, and bring as far as possible such offenders to justics,'

In agreeing with the order proposed by Mirza J.

Patkar J. said :

'We think that it is necessary and desirable that the inquiry which has been instituted by Mr. L. T. Karki as a Second Class Magistrate under Section 176 should be completed, though, no doubt, the delay caused by the interference of the Collector by his departmental order might result in prejudicially affecting the result of that enquiry. We think, however, that in the Interests of justice, this enquiry should be completed as soon as possible by the District Magistrate himself.'

11. In my judgment -- 'AIR 1928 Bom 390 (A)' does not support the point that arises for decision. In that case enquiry under Section 178, Criminal P. C. was interrupted by departmental order passed by the Collector and the High Court ordered that that enquiry should be completed.

12. For the reasons given above, I see no justification for the issuance of writ of 'mandamus' sought in Criminal Writ No. 5 of 1953.

13. In the result, I dismiss Criminal Writ No. 5 of 1953.

14. No order as to costs in these proceedings.


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