Skip to content


State of Kerala Vs. Hassanar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Ref. No. 13 of 1960
Judge
Reported inAIR1961Ker194
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 15, 17, 205, 367 and 526(8)
AppellantState of Kerala
RespondentHassanar and ors.
Advocates:Public Prosecutor
Cases ReferredMohammed Hussain v. Emperor
Excerpt:
- - whatever that may be, there should be clearly on record something to show that the person who represents the accused has been duly appointed by him and to show that the court has given requisite permission for his appearance in place of the accused. this is clearly irregular. 11. before closing i must say that the observation of the district magistrate regarding the bench magistrates in the order of transfer of the case and to some extent in the order of reference to this court was quite unnecessary and was needlessly offensive. strong and unpleasant criticism of subordinate judicial officers is not always necessary when the superior court takes a different view of facts or law from the one taken by the lower court......alone would amount to a contempt of court. there is thus no case for the issue of notice to the bench magistrate to show cause why they should not be committed for contempt.11. before closing i must say that the observation of the district magistrate regarding the bench magistrates in the order of transfer of the case and to some extent in the order of reference to this court was quite unnecessary and was needlessly offensive. strong and unpleasant criticism of subordinate judicial officers is not always necessary when the superior court takes a different view of facts or law from the one taken by the lower court.when judicial officers start going against each other, as we had in this case, they make the courts a laughing stock of the public bringing the administration of justice into.....
Judgment:
ORDER

P. Govinda Menon, J.

1. The facts of the case have been set out in full in the order of reference by the District Magistrate and it is unnecessary to restate them. The two questions that arise for decision are whether the order for the execution of the bond from Usman who is not an accused but only the manager of the accused and its subsequent forfeiture is illegal and has to be quashed and secondly whether any question of contempt of court arises in this matter.

2. As soon as cognizance is taken of a case the Magistrate has to issue summons for the attendance of the accused. The accused need not necessarily appear in person. Under Section 205 Cr. P. C., a Magistrate issuing summons may if he sees reasons to do so dispense with the personal attendance of the accused and permit him to appear by his 'pleader'. But the accused must first be served with summons and he must apply for permission to exempt his personal appearance. It may be, it is open to an accused to appoint his 'manager' to appear in his stead, and plead and do any other acts on his behalf in the case against him, and it may equally be open to the court to permit the manager to represent the accused.

3. The Bombay High Court in Dorabshah Bomanji Dubash v. Emperor, AIR 1926 Bom 218 has held that the estate manager can be said to be 'a pleader' within the meaning of the definition in Clause (r) of Section 4 of the Code of Criminal Procedure. Whatever that may be, there should be clearly on record something to show that the person who represents the accused has been duly appointed by him and to show that the court has given requisite permission for his appearance in place of the accused.

4. In this case the accused Hassanar is said to be in Colombo and has not been personally served with summons nor is it stated that he had authorised or appointed his manager to appear for him. When summons was taken out to the proprietor who is the accused in the case, the manager merely appeared in court and gave a vakalath to a lawyer to appear for him and the court allowed the proceedings to go on. This is clearly irregular.

5. Again it is the manager who intimated his intention to move for the transfer of the case under Section 526, Clause (8). Section 526, Clause (8) says that 'any party interested' may intimate to the court that he intends to make an application for transfer. It cannot be said that Usman the Manager and that too one not authorised by the accused to represent him and who is not a party to the proceedings is 'a party interested' within the meaning of the section. It follows that the court had no legal right to call upon such a person to execute a bond. The execution of the bond itself being not legal it goes without saying that there could be no forfeiture. It is only bonds lawfully and legally executed that could be forfeited. On this ground the action of the Bench of Magistrates in imposing the penalty on Usman can-1 not be justified.

6. The order passed by the Bench Court on 19-2-60 was that the petitioner Usman should execute a bond for Rs. 200/- that ho will make an application (or transfer within three weeks viz., before 11-3-60. In fact, Section 526(8) says that he should execute, if so required, a bond without sureties, that he will make such application within a reasonable time to be fixed by the court. So if within the time fixed the application is made there would be no scope for the forfeiture of the bond.

In this case it is seen that a transfer application was filed by the accused Hassanar himself before 11-3-1960 and that is all that was required to be done by the petitioner. The enquiry by the court should only have been whether an application for transfer had been filed and not whether order had been obtained from the court. No such enquiry seems to have been made and on this ground also the order imposing the penalty is unsustainable.

7. I might also say that in a first application under Section 526 Cr. P. C., it seems to me that no order of stay is necessary. Sub-section (8) to Section 526 enjoins two things upon the Magistrate, firstly to fix a reasonable time in which the party is to make an application and secondly he shall adjourn the hearing for a time sufficient not only for the application to be made but also for an order to be obtained on it.

The Magistrate having Once adjourned the case under Section 526(8) he should continue to adjourn the, case either until the date of making the application has passed and no application has been made or if an application has been made until the order has been obtained upon it. The Magistrate cannot constitute himself a Judge of how long it ought to take the superior court to pass orders after having been moved.

The court should ascertain whether the application is made and if it is found that the application has in fact been made he should go on adjourning the case until he received such orders permitting him to proceed with the case. I am fortified in the view I am taking by the Full Bench decision of the Lahore High Court in Mohammed Hussain v. Emperor, AIR 1943 Lah 191. Therefore in any view of the case, the cancellation of the bond is illegal and it is hereby quashed. The penalty, if recovered, will be refunded.

8. Coming to the 2nd question whether any contempt of court arises in this matter what the learned District Magistrate in his report says is that when the Honorary Magistrate were appraised of the fact that a transfer application had been filed before the District Magistrate, the court ought to have stopped further proceedings and therefore the proceedings connected with the forfeiture o the bond will amount to a contempt of court.

9. There is in this case no definite evidence whether the Bench Court was apprised of the filing of the transfer petition. In fact, the statement recorded from Usman on 14-3-60 does not disclose this. There is no doubt that when a subordinate court or Magistrate disregards a prohibitory order of a superior court of which the court is duly informed it will amount to a contempt of court. Where an order of stay or other such prohibitory order has been made by a superior court and if the subordinate court is credibly informed about it whether by affidavit or otherwise that stay has been ordered further proceedings should be stayed by the subordinate court.

10. In this case there was no order of stay or any other communication from the District Magistrate and therefore it cannot be said that there is any intentional disregard of the orders of a superior court which would amount to a contempt of court. The Bench Court also did not proceed with the trial of the case which is sought to be transferred, but only passed a wrong order of forfeiture of the bond. Though it might be said to be an injudicious act there is no wilful disobedience of any order of a superior court which alone would amount to a contempt of court. There is thus no case for the issue of notice to the Bench Magistrate to show cause why they should not be committed for contempt.

11. Before closing I must say that the observation of the District Magistrate regarding the Bench Magistrates in the order of transfer of the case and to some extent in the order of reference to this court was quite unnecessary and was needlessly offensive. Strong and unpleasant criticism of Subordinate Judicial Officers is not always necessary when the superior court takes a different view of facts or law from the one taken by the lower court.

When judicial officers start going against each other, as we had in this case, they make the courts a laughing stock of the public bringing the administration of justice into disrepute and undermine the confidence of the public in courts. I must also point out to the Bench of Magistrates that they are, under the Code of Criminal Procedure, subordinate to the District Magistrate.

12. The reference is answered as indicatedabove.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //