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Yusuf Ali Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. No. 1411 of 1993
Judge
Reported inAIR1994Raj116; 1994(1)WLC25
ActsRajasthan Municipalities Act, 1959 - Sections 3(15), 3(36) and 62; Rajasthan Municipalities Rules, 1974 - Rule 9; Code of Criminal Procedure (CrPC) , 1974 - Sections 3(4)
AppellantYusuf Ali
RespondentState of Rajasthan and ors.
Appellant Advocate K.N. Gupta, Adv.
Respondent Advocate K.S. Rathore, Adv.
DispositionPetition dismissed
Excerpt:
- .....are invested with judicial functions also under the code, for exmaple, under section 133 of the code, executive magistrates have the power to order the removal of the nuisance. under section 145 of the code, they have the power to determine dispute concerning land or water, if such dispute is likely to cause breach of peace. there are judicial functions which are exercised by an executive magistrate under the code. but when acting under any other law, other than the code, the executive magistrates could exercise only exeuctive or administrative functions. similarly, when judicial magistrates were called upon to act under the provisions of any law, other than the code, their functions are only judicial in nature. this is in fact new scheme brought about by sub-section (4) of section 3.....
Judgment:
ORDER

N.L. Tibrewal, J.

1. A short but important question is involved for consideration in the writ petition. The question is 'whether the motion of no-confidence was carried out against the petitioner by two-third majority of members of the Municipal Board, Jhalrapatan?'

2. The petitioner was elected as Vice-Chairman of Municipal Board, Jhalrapatan (hereinafter referred to as 'the Board'), in the year 1990. Six members of the Board submitted a written notice to the Collector on January 27, 1993, of the intention to make a motion of 'no-confidence' in the Vice-Chairman. A meeting was convened by the Collector on February 17, 1993, to consider the motion. The meeting was held on the appointed day and was presided by Sub-Divisional Officer, Jhalawar, as nominee of the Collector. The meeting was attended by ten members who voted in favour of the motion of no-confidence. The Sub-Divisional Officer held the motion to have been passed against the petitioner. According to him the total number of members of the Board was 15, as one member, Smt. Padma Bakliwal, had resigned and notices of the meeting toconsider the motion of non-confidence was also issued to 15 members by the Collector.

3. After the meeting was over, the petitioner made a representation to the Sub-Divisional Officer stating therein that the motion was not carried out by 2/ 3rd majority of whole number of members of the Board, as the meeting was altended by ten members, who supported the motion, but there ought to have been 11 members to make 2/3rd of 16 members of the Board, after counting Smt. Padma Bakliwal. The petitioners has challenged the order and also the proceedings of-the meeting dated 17-2-1993, whereby the motion of no confidence was held to have been passed against the petitioner as Vice-Chairman of the Board by a majority of 2/ 3rd members of the Board.

4. The contention of Mr. K. N. Gupta, learned counsel appearing for the petitioner is that there was 16 members of the petitioner is that there were 16 members of the Board and 2/3rd of it required 11 members to carry out the motion. Thus there is a dispute about the whole or total number of the members of the Board. As per the petitioner, it was 16, while according to the respondents it was 15. The dispute is whether Smt, Padma Bakliwal continued to be a member of the Board, when the motion of no confidence was taken into consideration. It may be stated here that Smt. Bakliwal had submitted her resignation in writing to the Chairman of the Board on 17-2-1992, and it was attested by the Executive-Magistrate, Jhalawar. Another related question for consideration is whether the resignation submitted by Smt. Bakliwal, resigning from the membership of the Board, was validly made by her and whether after the expiry of 15 days from the date of resignation, she ceased to be a member of the Board? In this connection, the submission of the learned counsel for the petitioner is that the resignation was not attested by a Judiciail Magistrate of First or Second Class, and as such, it was no resignation in the eye of law. It was also contended that the Addl. Director Local self department, vide his communication dated 30-11-1992, addressed to the Executive Officer of the Board, has intimated that theresignation of Smt. Bakliwal was not in accordance to Section 62 of the Rajasthan Municipalities Act, 1959 (for short the 'Act'), and Smt. Bakliwal continued to be a member of the Board.

5. On the other hand, Mr. K.S. Rathore, appearing for the Municpal Board, Jhalara-patan, contended that Smt. Bakliwal ceased to be a member of the Board w.e.f. 2nd August, 1992, i.e. after expiry of 15 days from 17-7-1992, when the resignation was submitted by her to the Chairman. It was also contended that the resignation was duly attested by an Executive Magistrate and it took effect automatically on the expiry of 15 days from the date of resignation. Elaborating his arguments, it was urged by Mr. Rathore that the resignation did not require any acceptance by any authority and the communication of the Additional Director, Local Self Department could not legally continue her as a member of the Board. Mr. Rathore contended that after exclusion of Smt. Padma Bakliwal, the total members of the Board were 15 and 2/3rd majority of it needed 10 members only to carry out the motion. The motion was voted for by ten persons and it was validly carried out under Rule 9 of the Rajasthan Municipalities (Motion of No Confidence against Chairman or Vice-Chairman) Rules, 1974 (for short the 'Rules').

6. In order to appreciate the respective contentions, the relevant provisions of the Act and the Rules may be examined.

7. Section 3 (15) of the Act defines 'member' as any person, who is lawfully a member of the Board. Then, Sub-section (36) states that 'whole number or total number, when used with reference to the member of the Board means the total number of members, holding office at the time.'

8. Section 62 provides that a member may resign his membership by giving notice in writing to that effect duly attested by Magistrate of the First or Second Class to the Chairman and such resignation shall take effect after the expiry of 15 days from the date of notice.

9. The whole controversy, therefore,centres around whether the resignation submitted by smt. Bakliwal was duly attested by a Magistrate as requried under Section 62 of the At. There is no dispute before me that the resigation letter was attested by an Executive Magistrate, but the contention of the learned counsel for the petitioners is that it ought to have been attested by a Judicial Magistrate of First or Second Class.

10. The Act does not provide any definition of 'Magistrate of the First or Second Class', who could make the attestation of the notice of resigation by a member of the Board. As a consequence of separation of the judiciary from the executive, there are now two categories of magistrates, viz. 'Judicial Magistrate' and the 'Executive Magsitrate'. The former being under the control of High Court, while the later under the control of the State Government. Broadly speaking, functions which are essentially judicial in nature are the concern of the Judicial-Magistrates, while the functions which are administrative in nature are the concern of the Executive Magistrates. The allocation of functions between Executive Magistrates and Judl. Magistrates are contained in the Code of Criminal Procedure, 1973. The revised set-up of Magistrates, after the separation of the judiciary from the executive, nccessisated introduction of Section 3 in the Code of Criminal Procedure, 1973 (for short as 'the Code') to explain the corresponding Magistrates for each area. Section 3 of the Code reads as under:--

'3. (1) In this Code,--

(a) any reference, without any qualifying words, to a Magistrate, shall be construed, unless the context otherwise requires,

(i) in relation to an area outside a metropolitan area, as a reference to a Judicial Magistrate;

(ii) in relation to a metropolitan area, as a reference to a Metropolitan Magistrate;

(b) any reference to a Magistrate of the Second class shall, in relation to the area outside a metropolitan area, be construed as a reference to a Judicial Magistrate of the second class, and, in relation to a metropolitan area, as a reference to a MetropolitanMagistrate;

(c) any reference to a Magistrate of the first class shall,--

. (i) in relation to a metropolitan area, be construed as a reference to a Metropolitan Magistrate exercising jurisdiction in that area;

(ii) in relation to any other area, be construed as a reference, to a Judicial Magistrate of the First Class exercising jurisdiction in that area;

(d) any reference to the Chief Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to the Chief Metropolitan Magistrate exercising jurisdiction in that area.

(2) In this Code, unless the context otherwise requires, any reference to the Court of a Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to the Court of the Metropolitan Magistrate for that area.

(3) Unless the context otherwise requires, any reference in any enactment passed before the Commencement of this Code.-

(a) to a Magistrate of the First Class, shall be construed as a reference to a Judicial Magistrate of the first class,

(b) to a Magistrate of the second class or the third class, shall be construed as a reference to a Judicial Magistrate of the second class;

(c) to a Presidency Magistrate or Chief Presidency Magistrate, shall be construed as a reference, respectively, to a Metropolitan Magistrate or the Chief Metropolitan Magistrate;

(d) to any area which is included in a metropolitan area, as a reference to such metropolitan area, and any reference to a Magistrate of the first class or of the second class in relation to such area, shall be construed as a reference to the Metropolitan Magistrate exercising jurisdiction in such area.

(4) Where, under any law, other than thisCode, the functions exercisable by a Magistrate relate to matters -

(a) which involve the appreciation of shifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be excrcisable by a Judicial Magistrate; or

(b) which are administrative or executive in nature, such as the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate.'

The above Section provides allocation of functions between the Executive Magistrates and the Judicial Magistrates. Sub-section (4) divides the functions exercisable by a Magistrate under any law other than the Code into judicial and administrative or executive functions in clause (a) and (b) and entrusts exercise of these functions respectively to the Judicial Magistrate and the Executive Magistrate. Clause (b) of Sub-section (4) makes it clear that when the functions exercisable by a Magistrate relate to matters which are administrative or executive in nature, under any law, other than the Code they are exercisable by an Executive Magistrate.

11. Section 6 of the Code classifies criminal courts into four groups. It provides as under:

'Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely:-

(i) -- Courts of Session;

(ii) -- Judicial Magistrate of the firstclass and, in any metropolitan area. Metropolitan Magistrates;

(iii) -- Judicial Magistrates of the second class;

(iv) -- Executive Magistrates.'

12. Section 20 provides for the authority who makes appointment of Executive Magistrates.

13. Section 22 provides their local jurisdiction and Section 23 deals with the subordination of the Executive Magistrates.

14. The scheme contained in Chapter IIof the Code, thus, allocates functions exercisable by the Executive Magistrates and the Judl. Magistrates. The functions exercisable by the Executive Magistrates under the Code are not necessarily executive. They are invested with judicial functions also under the Code, for exmaple, under Section 133 of the Code, Executive Magistrates have the power to order the removal of the nuisance. Under Section 145 of the Code, they have the power to determine dispute concerning land or water, if such dispute is likely to cause breach of peace. There are judicial functions which are exercised by an Executive Magistrate under the Code. But when acting under any other law, other than the Code, the Executive Magistrates could exercise only exeuctive or administrative functions. Similarly, when Judicial Magistrates were called upon to act under the provisions of any law, other than the Code, their functions are only judicial in nature. This is in fact new scheme brought about by Sub-section (4) of Section 3 of the Code. Sub-section (4) indicates that a Judicial Magistrate when acting under any law, other than the Code, can exercise functions which (i) involve the appreciation or shifting of evidence; (ii) involve the formulation of any decision which exposes any person to any punishment or penalty or detention in custody or (iii) involve any decision that would have the effect of sending any person for trial before any Court. This Sub-section also indicates that when an Executive Magistrate exercises powers under any law other than the Code, the functions exercisable by him are administrative or executive in nature. This is illustrated by reference to functions, such as, granting suspension or cancellation of licence and sanctioning of or withdrawing from prosecution. Thus, it is clear that an Executive Magistrate, after the enactment of theCode of Criminal Procedure, 1973, cannot exercise any function other than that of an administrative or executive in nature while acting outside the purview of the Code. Similarly, a Judicial Magistrate, outside the purview of the Code, cannot exercise administrative or executive functions. Sub-section (4) of Section 3 demarcates in clear terms the functions exercisable by a Judicial Magistrate and an Executive Magistrate outside the purview of the Code.

15. Applying the aforesaid demarcation in the function of a Judicial Magistrate and an Executive Magistrate, while acting under any law other than the code, it cannot be disputed that an act of attestation on a notice of resigation is purely an administrative or executive function and it is required to be done under the Municipaliaties Act outside the purview of the Code of Criminal Procedure, as such it can be done only by an Executive Magsitrate. The act being purely executive or administrative, can be exercised only by an Executive Magistrate after the Code of 1973, as provided by Sub-section (4) of Section 3 of the Code. The Judicial Magistrate exercises judicial functions. Only those functions can be exercised by him outside the purview of the Code, which are of judicial in nature as enumerated in clause (a) of Sub-sec. (4) of Section 3 of the Code. Therefore, it can safely be held that the notice of resignation submitted by Smt. Bakliwal, to the Chairman of the Board on 17-7-1992, was validly attested by the Executive Magistrate. It could not be attested by a Judicial Magistrate as contended by the learned counsel for the petitioner. The letter of resignation of Smt. Bakliwal was valid in the eye of law and it was also submitted to the proper authority i.e. the Chairman of the Board. The effect of the said resignation automatically came into operation on the expiry of 15 days from the date of its submission. It means that from 2nd August, 1992, Smt, Bakliwal ceased to be a member of the Board automatically and it did not require any acceptance or declaration by any authority. When she ceased to be a member of the Board by operation of law, the Additional Director. Local Self Department could not continue her as a member of theBoard by giving his own interpretation, which is erroneous in law, that the resignation was not valid as it was not attested by a Judicial Magistrate of First or Second Class. The interpretation given by the Additional Director, Local Self Department runs counter to the allocation of functions between a Judicial Magistrate and an Executive Magistrate as provided by Sub-section (4) of Section 3 of the Code, and also to the entire scheme of judicial separation from the Executive. As Smt. Bakliwal had ceased to be a member of the Board, when the motion of no confidence was moved and considered, the total strength of members of the Board remained 15 and 2/3rd of it was 10. Ten members had voted in favour of the no-confidence motion as such, it was carried out by 2/3rd majority of total number of members of the Board. After passing of the motion of no-confidence by 2/3 majority of the total number of members of the Board on 17-2-1993, the petitioner is deemed to have vacated the office forthwith as provided in the Rules.

16. The net result of the above discussions is that the motion of no-confidence was legally passed against the petitioner by a majority of 2/3 of total number of members of the Board and he ceased forthwith to be a Vice-Chairman of the Board.

17. Consequently, this petition has no merit and is hereby dismissed with costs-quantified Rs. 1,000/-. The ad-interim stay order shall stand vacated.


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