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K.R. Bhagat Vs. Babu Ram Lamba - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Revision No. 423 of 1970
Judge
Reported in7(1971)DLT141
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 12, 17, 17B, 435, 439, 469(6), 473 and 473(2); Constitution of India - Article 226
AppellantK.R. Bhagat
RespondentBabu Ram Lamba
Appellant AdvocateParty in perso
Respondent Advocate Manohar Lal, Adv.
DispositionPetition allowed
Cases ReferredMt. Mithan and Anr. v. Municipal Board of Orai
Excerpt:
.....the powers under delhi municipal corporation act was deemed to be a magistrate under the criminal procedure code and was subject to revisional jurisdiction of the high court as well as court of session under section 12 of the code.b) the case focused on whether the order of the municipal magistrates could be subjected to revisional power of the court of session as well as the high court - it was held that the municipal magistrate exercising the powers under delhi municipal corporation act was deemed to be magistrate appointed under section 12 of the criminal procedure code, 1898, thereforee the criminal court should be inferior to court of session - thereforee, the order of the municipal magistrates was subject to revisional power of the court of session as well as high court...........section 473 of the delhi municipal corporation act. 1957 thereinafter referred to as the act). the learned magistrate recorded the statement of the complainant on 22nd march, 196) and issued summons for the appearance of the respondent. the respondent appeared before the learned magistrate and thereafter the petitioner and the respondent were required to file affidavits in support of their respective cases instead of adducing oral evidence of witnesses. at this stage the learned magistrate was transferred and was succeeded by another magistrate. the latter was of the view that the complaint filed by the petitioner was not enquired into in the manner provided under the code of criminal procedure, in as much as the procedure prescribed under section 200 criminal procedure code was not.....
Judgment:

M.R. Ansari, J.

1. The petitioner herein, Shri K. R. Bhagat filed a complaint before the Municipal Magistrate, Delhi, against the respond at herein under Section 473 of the Delhi Municipal Corporation Act. 1957 thereinafter referred to as the Act). The learned Magistrate recorded the statement of the complainant on 22nd March, 196) and issued summons for the appearance of the respondent. The respondent appeared before the learned Magistrate and thereafter the petitioner and the respondent Were required to file affidavits in support of their respective cases instead of adducing oral evidence of witnesses. At this stage the learned Magistrate was transferred and was succeeded by another Magistrate. The latter was of the view that the complaint filed by the petitioner was not enquired into in the manner provided under the Code of Criminal Procedure, in as much as the procedure prescribed under Section 200 Criminal Procedure Code was not followed. He thereforee passed an order dated 1st April, 1970 directing the petitioner to lead preliminary evidence and also to give his own statement on oath for determining if any prima facie case was made out. He further directed that all the proceedings will be started afresh as contemplated under Section 350 Criminal Procedure Code.

2. Against this order the petitioner filed a revision petition before the Additional Sessions Judge, Delhi, and the litter has submitted a report to this Court with a recommendation that the order of the learned Magistrate dated 1st April, 1970 be quashed and that the trial Court should proceed to decide the case on the evidence already on record.

3. The learned counsel for the respondent has raised a preliminary objection against the order of the learned Additional Sessions Judge on the ground that neither the learned Additional Sessions Judge nor this Court has any revisional jurisdiction over the Municipal Magistrate under Sections 435 and 439 Criminal Procedure Code and in support of this contention he has cited a decision of the Allahabad High Court in Mt. Mithan and Anr. v. Municipal Board of Orai, : AIR1956All351 .in which it was held that a Magistrate exercising Powers under the U. P. Municipalities Act was not an inferior Criminal Court within the meaning of Section 435 Criminal Procedure Code and neither the Court of Session nor the High Court has any revisional jurisdiction to interfere with the orders of the said Magistrate.

4 That was a. case of a Magistrate passing an order under Section 247(1) of the U. P. Municipalities Act. 1960 The following observations of the High Court would indicate that the High Court was not laying down any general rule in respect of all orders of Magistrates under the U. P. Municipalities Act but were restricting the applicability of the rule only to an order passed by a Magistrate under Section 247 (1) of the said Act, ''Anything we say about an order passed under Section 310(2) would be simply obiter and not bind any Court. We may also be excused for not entering into a discussion as to what is a Criminal Court ; what we say on the question whether a Magistrate passing ant order under Section 247(1) acts as a Criminal Court will be a decision in the case, but what we say or the question whether a Magistrate passing any other order does so as a criminal Court will be obiter'.

5. I have gone through the U. P. Municipalities Act 1960 and I do not find any provision therein similar to Section 469 of the Act. The relevant portions of that section are as follows :

'The Central Government may appoint one or more magistrates of the first class for the trial of offences against this Act and against any rule, regulation or bye-law made there under and may prescribe the time and place at which such magistrate or magistrates shall sit for the dispatch of business.

(2) Such magistrates shall be called municipal magistrates and shall besides the trial of offences as aforesaid, exercise all other powers and discharge all other functions of a magistrate as provided in this Act or any rule, regulation or bye-law made there under.

(6) For the purposes of the Code of Criminal Procedure 1898 (5 of 1898), all municipal magistrates appointed under this Act shall be deemed to be magistrates appointed under Section 12 of the said Code.'

6. By virtue of Sub-section (6) of Section 469 the municipal magistrate who passed the impugned order shall be deemed to be a Magistrate appointed under Section 12 of the Code of Criminal Procedure. Under Section 17-B of the Criminal Procedure as amended in the Punjab 'Court of session' and 'Court of Judicial Executive Magistrate' shall be criminal courts inferior to the High Court and Courts of Judicial and Executive Magistrates shall be criminal courts inferior to the Courts of Session. thereforee, reading Section 469(6) of the Act with Section 12 and 17 of the Code of Criminal Procedure, what follows is that the Municipal Magistrates appointed under the Act are criminal courts inferior to the Courts of session and as such the Court of Session has revisional jurisdiction over the Municipal Magistrate under Section 435 Cr.P.C. and it further follows that the High Court has similar revisional powers over the Municipal Magistrates under Section 439 Cr.P.C. In any case whether or not the Court of Session has any revisional jurisdiction. This Court thereforee can examine the impugned order of the learned Magistrate and can give such directions to the Magistrate as it may deem necessary,

7. An enquiry conducted by the Municipal Magistrate has to be either in accordance with the procedure prescribed under the Act for making such an enquiry or in the absence of any specific procedure for the conduct of such an enquiry it has to be made in accordance with the provisions of the Code of Criminal Procedure. Under Section 473 of the Act no special procedure is prescribed for making an enquiry into a complaint made by any person under that section. Sub-section (2) of Section 473, however, empowers the Magistrate to make 'such enquiry as he thinks necessary' into such complaint. thereforee in the enquiry under Section 473 of the Act the Magistrate does not have to follow any special procedure prescribed under the Act or to follow the procedure prescribed in the Code of Criminal Procedure. It is left to the Magistrate to follow such procedure as be thinks necessary, subject, of course, to the rules of natural justice. There was thereforee nothing improper or irregular in the procedure adopted by the learned Magistrate before whom the complaint had been filed in the first instance.had recorded the statement on oath of the complainant and then dispensed with the examination of witnesses and directed that both the parties may file their affidavits in support of their respective cases. The learned Magistrate whose order is now impugned is thereforee certainly wrong, in his view, that the earlier proceedings were in any way irregular. But at the same time it is open to the successor Magistrate to depart from the procedure followed by his predecessor and to make the enquiry in a manner which he thought was necessary. It was certainly open to the successor Magistrate to require the parties to examine witnesses before him. The successor magistrate cannot be tied down to the procedure followed by his predecessor and he cannot be directed to decide the case on the material already on record. The only thing that the successor Magistrate cannot do is to treat the earlier proceedings as vitiated or to wipe the earlier proceedings off the record. The impugned order does not in terms discharge the respondent or dispense with the respondent's presence in the proceedings before the successor Magistrate. There is no need in this case to start fresh proceedings from the stage of Section 200 Cr.P.C The complainant has already been examined on oath and the respondent has already appeared before the Court. The learned Magistrate may continue the proceedings from this stage and may follow the procedure prescribed for the trial of summons cases. The order of the learned Magistrate is modified to this extent only and he is directed to complete the enquiry into the complaint filed by the petitioner in accordance with law.


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