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Kishansingh Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1974CriLJ238; 1973()WLN176
AppellantKishansingh
RespondentThe State of Rajasthan
Cases ReferredKanpur v. Dwarka Prasad
Excerpt:
.....proceeds like this :the words 'a magistrate other than a district magistrate' occurring in section 515, cr. covers an additional district magistrate and an order passed under section 514 by the additional district magistrate is appealable then clearly the words, district magistrate' and 'shall be appealable to the district magistrate' would include an additional district magistrate and in that case it would be empowering an additional district magistrate to hear appeal from his own order. is invested with all the powers of the district magistrate under the code as well as under any other law for the time being in force and therefore the application filed after obtaining the permission of the additional district magistrate was competent. this authority clearly goes to show that the term..........which calls for determination is whether the additional district magistrate is competent to hear appeals against the orders passed under section 514, cr. p. c. the learned additional sessions judge has simply referred to one case of tripura and has come to hold that the term 'district magistrate' does not include the additional district magistrate and therefore the latter is not. competent, to hear appeals under section 515, cr. p. c. unfortunately, the learned additional sessions judge has not probed deep into the matter and has even not tried to look into the authority of this court reported in lalloo lal v. the state 1959 raj lw 528 and his finding is rather of a cursory nature. i have, therefore, examined the position of law. after examining the same i find that there is a.....
Judgment:
ORDER

M.L. Joshi, J.

1. One Shri Kishansingh stood as surety for accused Mangiya in the court of the First Class Magistrate, Kota on 21st November, 1964. Mangiya remained absent on 6th April, 1965. On that day counsel for Mangiya prayed for exempting his attendance on the ground of his illness. This application was granted and the learned Magistrate directed that the accused be produced on 18th May, 1965. On 18th May, 1965 also the accused Mangiya remained absent and his personal bonds and bail bonds were forfeited, A bailable warrant of rupees two thousand was therefore issued to procure his attendance. Sometime afterwards proceedings under Section 514, Cr. P. C. were also initiated and a notice was issued to the surety Kishansingh to produce Mangiya in the court on 24th September, 1965. This notice was served on the surety on 25/26th August, 1965. The surety, however, failed to produce Mangiya and the learned Magistrate therefore ordered the recovery of rupees two thousand from Kishansingh, the surety. Kishansingh went in appeal in the court of the District Magistrate, Kota. This appeal came to be decided by the learned Additional District Magistrate, Kota who dismissed the same. Mangiya therefore moved in revision and challenged the order of the learned Additional District Magistrate passed in appeal. Before the learned Additional Sessions Judge, amongst others, one particular contention raised on behalf of the applicant Kishansingh was that the Additional District Magistrate was wholly incompetent to hear the appeal under Section 514, Cr. P. C. as the same could be heard by the District Magistrate and not by the Additional District Magistrate. This contention found favour with the Additional Sessions Judge who after placing reliance on a case reported in Ijat Ali v. The State AIR 1965 Tripura 14 : 1965 (1) Cri LJ 346 came to hold that the term 'District Magistrate' does not include an Additional District Magistrate. He consequently on the aforesaid authority held that the appellate order of the learned Additional District Magistrate being without jurisdiction deserves to be quashed. In the view which he took of the matter he has made this reference with the recommendation that the appellate order of the learned Additional District Magistrate dated 8th October, 1969 be quashed and the case be sent back to the court of the learned District Magistrate for deciding the appeal on merits.

2. This reference was originally placed before me in Chambers and there was nobody to oppose the reference. However, after going through the order of reference I felt that there was important point of law involved in the case and therefore I issued notice to the Government Advocate to hear him on the reference. In response to the notice the counsel for the State Mr. N, N. Mathur has cut in appearance and addressed me with the help of relevant authorities on the point.

3. The principal question which calls for determination is whether the Additional District Magistrate is competent to hear appeals against the orders passed under Section 514, Cr. P. C. The learned Additional Sessions Judge has simply referred to one case of Tripura and has come to hold that the term 'District Magistrate' does not include the Additional District Magistrate and therefore the latter is not. competent, to hear appeals under Section 515, Cr. P. C. Unfortunately, the learned Additional Sessions Judge has not probed deep into the matter and has even not tried to look into the authority of this Court reported in Lalloo Lal v. The State 1959 Raj LW 528 and his finding is rather of a cursory nature. I have, therefore, examined the position of law. After examining the same I find that there is a conflict of judicial opinion on the point under consideration. One view is that the term 'District Magistrate' does not include the Additional District Magistrate and therefore appeal under Section 515, Cr. P. C. could not be heard by the Additional District Magistrate. The reasoning for this view proceeds like this : The words 'a Magistrate other than a District Magistrate' occurring in Section 515, Cr. P. C. are significant. It is on the footing of these words that it has been observed that the Additional District Magistrate though he may have all the powers of a District Magistrate is still a Magistrate other than a District Magistrate because the Code of Criminal Procedure contemplates only one person as the District Magistrate. This reasoning has further stressed that if the expression 'Magistrate other than a District Magistrate' in Section 515, Cr, P. C. covers an Additional District Magistrate and an order passed under Section 514 by the Additional District Magistrate is appealable then clearly the words, 'District Magistrate' and 'shall be appealable to the District Magistrate' would include an Additional District Magistrate and in that case it would be empowering an Additional District Magistrate to hear appeal from his own order. This view is propounded in Kaluram K/O. Gopal v. Madhya Bharat State AIR 1951 Madh B 67 : 52 Cri LJ 214, IJat Ali v. The State AIR 1965 Tripura 14 : 1965 (1) Cri LJ 346 and M. A. Gaffur v. The State AIR 1953 Assam 96 : 1953 Cri LJ 704. It may however be mentioned that the Tripura and Madhya Bharat cases do not give reasoning for the view which they have taken but have more or less assumed that the expression 'District Magistrate' in Section 515, Cr. P. C. does not include the Additional District Magistrate. A similar question also came up before a Division Bench of the Calcutta High Court in Bholanath Ghosh v. The State : AIR1967Cal440 . In that case it was held that the Additional District Magistrate cannot entertain an appeal under Section 515, Cr, P. C. but can hear it if the same is transferred to him.

4. Another view is that the Additional District Magistrate who is invested with all the powers of a District Magistrate under the Code can entertain and hear appeal under Section 515 against any order passed by a Magistrate other than himself. The line of reasoning adopted in favour of the second view is that the power to hear an appeal conferred on the District Magistrate under Section 515 is a judicial power. The language of Section 515 is to be taken in a wider amplitude without putting limitations not warranted under the section. The Additional District Magistrate who has been appointed under Section 10(2), according to this view, enjoys all the powers of the District Magistrate and cannot be taken to be subordinate to the District Magistrate when he is exercising judicial power. The term 'District Magistrate'' therefore includes. Additional District Magistrate also who could hear and dispose of appeals. The second view has been propounded in Narayan Chandra Ghose v. The State : AIR1967Cal314 and Suraj Narain v. The State (1963) 65 Pun LR 322. A similar question came up before the Division Bench of this Court in Lalloo Lal's case, 1959 Raj LW 528. Jagat Narayan J. (as he then was) speaking for the Court has after reviewing certain authorities observed that the State Government can confer power under Section 515, Cr. P. C. on the Additional District Magistrate by virtue of provisions of Section 10(2) of the Code, In view of the authority of our own High Court it is very difficult for me to place reliance on the authorities in favour of the first view.

5. After going through the authorities I am of the opinion that the power conferred under Section 515, Cr. P. C. is a judicial power and that the Additional District Magistrate, if so conferred with, can exercise it. In fact, I find nothing in Section 515 to put limitation on the amplitude of the powers conferred on the Additional District Magistrate under Section 10 (2) of the Code. The argument based on the expression 'Magistrate other than a District Magistrate' occurring in Section 515 of the Code of Criminal Procedure is not of any significance. It was argued that if Additional District Magistrate is held to come under the term 'District Magistrate' an anomalous situation will be created inasmuch as if the Additional District Magistrate who exercises powers of a First Class Magistrate takes proceedings under Section 514, Cr. P .C. then in that case an appeal will lie to himself which would be resulting in an absurd situation. The argument though prima facie attractive has no substance. The similar reasoning could be given in a case where the District Magistrate who has passed an order under Section 514 will be competent to hear appeal against his own order. The true interpretation of the term 'District Magistrate' is also suggested by reading of Section 10(3). Section 10(2) of the Code of Criminal Procedure lays down that the State Government may appoint any Magistrate of the First Class to be an Additional District Magistrate, On such appointment the Additional District Magistrate shall have all or any of the powers of the District Magistrate under the Code or under any other law for the time being in force as the State Government may direct. Sub-section (3) of Section 10 is worthy of mention here in order to find out the true intention of the legislature and it reads:

(3) For the purposes of Sections 192, Sub-section (1), and 528, Sub-sections (2) and (3), such Additional District Magistrate shall be deemed to be subordinate to the District Magistrate.

It will appear that the Additional District Magistrate has been made subordinate to the District Magistrate in a limited manner for the purposes of Sections 192, Sub-section (1) and 528 only. From this deeming provision it will appear that essentially the Additional District Magistrate is not subordinate to the District Magistrate while exercising the judicial functions. It is only by virtue of the deeming provision that he has been artificially made subordinate for a limited purpose. This also suggests that the terms 'District Magistrate' includes the Additional District Magistrate if he has been appointed by the State Government in the manner provided under Sub-section (2) of Section 10 of the Code of Criminal Procedure. It will be useful here to notice the authority reported in Central Talkies Ltd., Kanpur v. Dwarka Prasad : 1961CriLJ740 . That case, of course, relates to an application under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act for permission to file a civil suit. Under the U. P. Act the permission was to be obtained from the District Magistrate. The material portion of Section 3 of the U. P. Act, as it stood on the relevant date reads as follows:

No suit shall, without the permission of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds....

According to the literal provision of that section the permission was to be obtained from the District Magistrate. However, in that case the permission was obtained from the Additional District Magistrate for filing the suit, A controversy was raised that the Additional District Magistrate was not competent to accord permission and therefore the suit was incompetent as it was filed without obtaining the permission of the District Magistrate. Their Lordships of the Supreme Court held that the Additional District Magistrate who had been appointed as such by a notification under Section 10(2), Cr. P. C. is invested with all the powers of the District Magistrate under the Code as well as under any other law for the time being in force and therefore the application filed after obtaining the permission of the Additional District Magistrate was competent. This authority clearly goes to show that the term 'District Magistrate' includes Additional District Magistrate also. There is a notification No. F. 1 (10)LJ/B/57/183, dated 23rd January, 1957 issued by the Governor of Rajasthan under Section 10 of the Code of Criminal Procedure whereby the Government has conferred the powers of the District Magistrate on the Additional District Magistrate. The powers have been listed in the said notification. Item No. 13 of that notification confers powers on the Additional District Magistrate to hear appeals from or revise orders passed under Sections 514 and 515 of the Code. It reads as under:

Power to hear appeals from or revise orders passed under Sections 514 and 515 of the Code.

6. As a result of the above discussion I am clearly of opinion that the second view referred to above is a correct view and the Additional District Magistrate is competent to hear or dispose of appeals under Section 515, Cr. P. C. It appears that the correct position of law was not laid before the Additional Sessions Judge nor has he been able to appreciate the legal position in this behalf.

7. In the result, I am unable to accept the reference and the same is hereby rejected.


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