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R. Subramaniam Vs. Commissioner of Police - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Case NumberCriminal Misc. Petn. No. 2175 of 1963
Judge
Reported inAIR1964Mad185; 1964CriLJ519
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 1(2), 4, 5(2), 6, 386, 387, 435, 439 and 561A; Madras Criminal Rules of Practice - Rule 290A, 290A(7), 290A(8) and 290A(9); Kerala General Sales Tax Act, 1125 - Sections 19
AppellantR. Subramaniam
RespondentCommissioner of Police
Advocates:M.S. Ramaswami, Adv.;V.V. Radhakrishnan, Adv. for ;Public Prosecutor and ;The Govt. Pleader and ;T.N.C. Rangarajan, Adv.
Cases ReferredState v. G. L. Udayawar
Excerpt:
criminal - interpretation - section 19 of kerala general sales tax act, 1125, sections 386 and 387 of criminal procedure code, 1898 and rules 290a (7), 290a (8) and 290a (9) of madras criminal rules of practice - chief presidency magistrate (cpm) endorsed magistrate's warrant for recovery of fine issued under section 19 - endorsement made by cpm amounts to judicial function - such order revisionable by high court - cpm ought to have inquired into claims of petitioner before endorsing warrant - order issued without inquiring into claims of petitioner untenable and set aside - cpm directed to recall warrant and dispose of matter after hearing parties. - - 336 of 1960 on the file of the additional first class magistrate, ernakulam, which was endorsed by the chief presidency magistrate,.....orderkailasam, j.1. this petition is filed under section 561-a criminal procedure code to call for the warrant issued in s. t. 336 of 1960 on the file of the additional first class magistrate, ernakulam, which was endorsed by the chief presidency magistrate, madras, for execution and for return of the same to the court of issue. the petitioner alleged that he was convicted of an offence under the provisions of the kerala sales tax act for default of payment of sales tax by the additional first class magistrate, ernakulam and sentenced to pay a fine of rs. 100/-. the arrears of sales tax due, a sum of rs. 6000/- was also directed to be collected as fine. a warrant was issued by the additional first class magistrate, ernakulam, addressed to the chief presidency magistrate, madras for the.....
Judgment:
ORDER

Kailasam, J.

1. This petition is filed under Section 561-A Criminal Procedure Code to call for the warrant issued in S. T. 336 of 1960 on the file of the Additional First Class Magistrate, Ernakulam, which was endorsed by the Chief Presidency Magistrate, Madras, for execution and for return of the same to the Court of issue. The petitioner alleged that he was convicted of an offence under the provisions of the Kerala Sales Tax Act for default of payment of sales tax by the Additional First Class Magistrate, Ernakulam and sentenced to pay a fine of Rs. 100/-. The arrears of sales tax due, a sum of Rs. 6000/- was also directed to be collected as fine. A warrant was issued by the Additional First Class Magistrate, Ernakulam, addressed to the Chief Presidency Magistrate, Madras for the purpose of endorsing the warrant under the provisions of Section 387 Criminal Procedure Code and for execution. The warrant was endorsed by the Chief Presidency Magistrate and forwarded to the Commissioner of Police, Madras for execution. The petitioner moved the Chief Presidency Magistrate, Madras for return of the warrant on the ground that the warrant was not executable. The learned Chief Presidency Magistrate dismissed the petition holding that he had already sent the warrant for execution to the Commissioner of police and therefore had become functus officio. He also held that the Court of the Additional First Class Magistrate, Kerala was competent to issue a distress warrant under Section 386 Criminal Procedure Code.

2. According to the petitioner, the warrant is illegal as it is not in conformity with Section 386 (1) Criminal Procedure Code. He submitted that he had already paid the fine imposed by the Court and that the warrant issued for the collection of the sales tax is not legal. He further submitted that as the warrant is issued under Section 386 (1) Criminal Procedure Code, it cannot be transmitted outside the jurisdiction of the Kerala State, for, according to him, the provisions of the Kerala Sales Tax Act can have validity only within the territorial limits of the State and they cannot have any extra territorial application, and the procedure relating to the recovery of the tax could operate only within the State of Kerala.

3. The learned Public Prosecutor submitted that the Chief Presidency Magistrate, who endorsed the warrant, is not an inferior criminal court under Section 435 Criminal Procedure Code and therefore his order is not revisable under Section 439 Criminal Procedure Code. Notice was issued to the Government Pleader when the case came up for hearing at the first instance and the Government Pleader submitted that the Kerala State Sales Tax Act providing that the arrears of tax shall be collected as fine is perfectly valid and is executable even outride the Kerala State under Sections 386 and 387 Criminal Procedure Code. It is unnecessary to consider the contention of the Government Pleader in this petition.

4. Section 386 Criminal Procedure Code provides that where an offender has been sentenced to pay a fine the Court passing the sentence may take action for the recovery of the fine by issuing a warrant for the levy of the amount by attachment and sale of any moveable property belonging to the offender. A warrant thus issued by any Court may be executed under Section 386 Criminal Procedure Code within the local limits of jurisdiction of such Court. The Court may also authorise the attachment and sale of any such property without such limits when endorsed by the District Magistrate or the Chief Presidency Magistrate within the local limits of whose jurisdiction such property is found. The contention of the learned Public Prosecutor is that when the Chief Presidency Magistrate endorses the warrant received by him from outside for execution, he is not acting as a 'Court'. The Criminal Rules of practice provide for the execution of warrants under Sections 386 and 387, Criminal Procedure Code. Sub-rule (7) to Rule 290-A provides that claims may be preferred under Sub-rule (6) in the Court by which the warrant is issued or if the claim relates to the property attached under a warrant endorsed by the District Magistrate or the Chief Presidency Magistrate under Section 387 Criminal Procedure Code in the Court of such Magistrate. Sub-rule (8) provides that such claims shall be enquired into and disposed of by the Court in which it is preferred. It is also provided that a Court of a District Magistrate or a Chief Presidency Magistrate may make over the petition to Magistrate of a first or a second class or to any Presidency Magistrate subordinate to him. Sub-rule (9) provides that the enquiry shall be summary and the Court shall record its decision and the claim with the reasons therefore. Thus it will be seen that in Sub-rules (7), (8) and (9) the Chief Presidency Magistrate is referred to as a Court and is empowered to make over the petition to some other magistrate. He is empowered to hear claims regarding the property attached and dispose of those claims. The contention of the learned Public Prosecutor is that in spite of the wording in Sub-rules (7), (8) and (9) the function of the Chief Presidency Magistrate in endorsing the warrant is purely administrative and is done in his executive capacity and not as a Court. According to him, the function of the Chief Presidency Magistrate is only that of collecting agent doing collection of fines or arrears of a tax due to the concerned Governments.

5. The order of the Additional First Class Magistrate, Ernakulam was passed under Section 19 of the Kerala General Sales Tax Act. The contravention of several provisions of the Act is made punishable under clauses (a) to (h) to Section 19. Clause (h) provides that any person who wilfully acts in contravention of any of the provisions of the Act shall on conviction by a magistrate of the first class be liable to a fine which may extend to one thousand rupees and in the case of a conviction under clause (b), (d), (f) or (g), the magistrate shall specify in the order the tax, fee or other amount, which the person convicted has failed or evaded to pay or has wrongfully collected, and the tax, fee or amount so specified shall be recoverable as if it were a fine under the Criminal Procedure Code for the time being in force. The question for consideration is whether an order passed under clause (h) directing the tax to be recovered as if it were a fine under the Criminal Procedure Code is revisable by the High Court under Section 439 Criminal Procedure Code.

6. Section r (2) Criminal Procedure Code provides that the Code extends to the whole of India, but in the absence of any specific provision to the contrary, nothing contained in the Code shall affect any special or local law that was in force at the time the Act came into force or any special jurisdiction or power conferred or any special form of procedure prescribed, by any other law for the time being in force. Section 5 (2) Criminal Procedure Code provides that all offences under any other law (other than the I. P. C.) shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. The Kerala General Sales Tax Act does not contain any special form of procedure for the trial of offences under the Act, and therefore the Criminal Procedure Code will be applicable. The provisions relating to offences against the other laws given in Sch. II of the Criminal Procedure Code are applicable.

7. Section 6 Criminal Procedure Code classifies the criminal Courts. The Presidency Magistrate is one of the Courts mentioned in the section. Under Section 21 of the Criminal Procedure Code the Chief Presidency Magistrate is empowered to exercise all the powers conferred on him by the Code or by any law or rule in force immediately before the Code came into force. Thus the Chief Presidency Magistrate is a Court constituted under the Criminal Procedure Code. Under Section 435 Criminal Procedure Code the High Court may call for and examine the record of any proceeding before any inferior criminal Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court. The power of revision is conferred on the High Court to call for and examine the record of 'any inferior criminal Court'. The section, therefore, requires that the Court whose order is sought to be revised should be an inferior criminal Court and that any finding, sentence or order passed and the regularity of the proceedings can be examined by the High Court. To constitute a criminal Court it is not sufficient that it is one of the Courts mentioned in Section 6 Criminal Procedure Code. It must be acting as a criminal Court. The magistrate may be acting under his executive or administrative capacity or under the powers conferred on him by some other law. These proceedings are not that of a Court and are not revisable. The magistrate should be acting as a Court and the proceeding that is sought to be revised should be a judicial proceeding. Under the Code, the magistrate is empowered to act judicially as well as in his administrative capacity. The orders that can be revised are those that are passed in judicial proceedings. 'Judicial Proceedings' is defined in Section 4 (m) Criminal Procedure Code as including any proceeding in the course of which evidence is or may be legally taken on oath. The definition is an inclusive one. Under 'judicial proceeding' the acts of the Court which are passed judicially, that is after hearing the parties, and which affect the rights of parties will be included.

8. It is not disputed that when the magistrate acts under Section 19 of the Kerala General Sales Tax Act and finds a person guilty under any of the clauses (a) to (h) he is a Court. As the Kerala General Sales Tax Act does not provide any special procedure, the Criminal Procedure Code is applicable. After a due trial under the Code, the person is found guilty and convicted. Therefore, there can be no dispute that when the magistrate finds a person guilty under Section 19 and sentences him to pay a fine, he is acting as a Court. The question, which is more difficult to answer is whether he acts as a Court, when under the second part of clause (h) to Section 19 of the Kerala General Sales Tax Act he specifies the tax and directs that it shall be recoverable as if it were a fine under the Criminal Procedure Code for the time being in force. The decisions of several High Courts on this point are not unanimous, and some of them may be referred to.

9. In Meenakshi Naidu v. Subramania Sastri, ILR 2 Mad 26 (PC) the Privy Council held that the right of appointing a member of the Committee in the Civil Court was not as a matter of ordinary civil jurisdiction but because the officer, who constituted the Civil Court, was sure to be one of weight and authority and with the best means of knowing the movement of local opinion and feeling and one could hardly imagine a case in which it would be more desirable that the discretion should be exercised by a person acquainted with the District and with the surroundings. The exercise of the decision being so placed in the District Judge their Lordships were unable to find that he was acting as a Court.

10. In Vijayaraghavalu Pillai v. Thiagaraja Chetty, ILR 38 Mad 581 : AIR 1915 Mad 360 ), it was held that the High Court had no jurisdiction to revise an order passed by a Presidency Magistrate in an enquiry held by virtue of the rules framed by the government under the Madras City Municipal Act, whereby a magistrate might decide as to the competency or otherwise of a person for a municipal election. The Court held that the Presidency Magistrate in that particular instance was not a Court subject to the appellate jurisdiction of the High Court but was in the position of a referee between the president and the candidate.

11. In In re, Mrs. Annie Besant, ILR 39 Mad 1164 : AIR 1918 Mad 1266 it was held that the segislature delegating to the magistrate the functions under Section 3 (1) of the Press Act did not regard him as a Court but as an executive officer entrusted with the performance of certain administrative duties.

12. The three decisions cited above are not very helpful in deciding the point at issue. In those decisions it was held that certain acts of the magistrate were not those of a Court. But in this case it has to be considered whether the act of a Magistrate directing the collection of arrears of tax as fine while sitting as a Court and finding the petitioner guilty of an offence under the Kerala General Sales Tax Act and sentencing him to pay a fine is that of a Court or not.

13. In Re: Dinbai Jijibhai Khambatta, : AIR1919Bom93 , the Court had to consider whether an order passed by a magistrate under Section 161 (2) of the Bombay District Municipalities Act could be revised by the High Court. Section 161 (2) of the Bombay District Municipalities Act may be extracted-

'Any prosecution under this Act or tinder any bye-lays there under may, save as therein otherwise provided, be instituted before any magistrate and every fine or penalty imposed under or by virtue of this Act or any bye-law there under, and also all claims to compensation or other expenses for the recovery of which no special provision is otherwise made in this Act, may be recovered on application to such magistrate, by the distress and sale of any moveable property within the limits of his jurisdiction belonging to the person from whom the money is claimable.'

Shah, J., held that the power exercised by a Magistrate under Section 161 (2) in respect of any prosecution was a judicial power and any order made by him would be the order of an inferior criminal Court liable to revision by the High Court, and that the power under the latter part of the sub-section was ordinarily of a ministerial nature. He further observed that unless the contrary meaning was clearly indicated it was reasonable to hold that no differential treatment was intended in respect of orders made by magistrates under sub-section (2), and that it was revisable by the High Court. Heaton, J., agreed with Shah, J., and held that taking the general meaning one could not have the second part without the first and that decision on the claim of compensation was also a judicial decision subject to revision by the High Court.

14. In Emperor v. Devappa Ramappa, : AIR1919Bom158 , Pratt, J., held that the test was not the nature of the proceeding held by the Court, but the nature of the Court in which that proceeding was held and that proceedings of a civil nature might be held in a criminal Court, as for instance, applications for maintenance under Section 488 Criminal Procedure Code and those were subject to revision under Section 435.

15. The question was considered at some length by a Bench of the Allahabad High Court in Mithan v. Municipal Board of Orai and State of U. P., : AIR1956All351 . The Bench held that an order passed by a magistrate under Section 247(1) of the Municipalities Act was not of an inferior criminal Court within the meaning of Section 435 Criminal Procedure. Code and hence not revisable by the High Court. Section 247 (1) of the U. P. Municipalities Act is to the effect that when a magistrate of the first class receives information that a house in the vicinity of a place of worship etc. is used as a brothel or for the purpose of habitual prostitution, he may summon the owner, tenant ......... to appear before him either in person or by agent and if satisfied that the house is used as described above may order such owner, tenant; etc., to discontinue such use. Section 247 (2) lays down that if: the person against whom the above order has been passed fails to comply with it within the time allowed 'the Magistrate may impose on him a fine'. It was held that a proceeding before a first class magistrate under Section 247 (1) of the Municipalities Act was not a proceeding within the meaning of Section 435 Criminal Procedure Code and that even if the magistrate were deemed to be exercising jurisdiction as a criminal Court when proceeding under Section 247 (I), the enquiry that be held was not a proceeding as contemplated by Section 435 Criminal Procedure Code and that the revisional jurisdiction was confined only to orders passed in regular trials and in certain specified inquiries. Regarding Section 247 (2) of the Municipalities Act, the Bench held that it created an offence, that the offence would be tried in accordance with the provisions of the Code, that a proceeding in the trial would, therefore, be a proceeding before an inferior criminal Court and would be revisable. The Bench also observed-

'Merely because a proceeding before a magistrate under sub-section (2) is a proceeding before an inferior criminal Court, it cannot be said that a proceeding under sub-section (1) before him also is a proceeding before an inferior criminal Court. One proceeding may be a proceeding before a criminal Court and another, though connected with it, may not be. The test is not whether a proceeding under consideration is connected with a proceeding before an inferior criminal court; the test always is whether the proceeding under consideration itself is a proceeding before an inferior criminal court.'

The Bench of the Allahabad High Court was unable to agree with the decision in : AIR1919Bom93 where it was held that no differential treatment was intended in respect of orders made by the magistrate between sub-section (1) and sub-section (2) of Section 161 of the District Municipalities Act. These two conflicting decisions were referred to in Dargah Committee v. State of Rajasthan, : [1962]2SCR265 but the Supreme Court refrained from expressing any opinion about the correctness or otherwise of the decisions.

16. The Supreme Court held in : [1962]2SCR265 , that the proceeding under Section 234 of the Regulation before a magistrate by the Municipal Committee for recovery of expenses incurred by it in carrying out the repairs to the building under Section 222 (4), from the owner of the building, was not revisable by the High Court under Section 439 Criminal Procedure Code. Section 234 of the Ajmer Merwara Municipalities Regulation provides for the machinery of recovery of all tax due to the Committee under these regulations by an application to a magistrate having jurisdiction by distress and sale of any immovable property within his jurisdiction. The Supreme Court observed that the proceedings under Section 234 initiated before a Magistrate were no more than recovery proceedings. The Supreme Court also observed that all questions regarding the validity of the notice or any claim against the Committee should be raised in an appeal under Section 93 (1), that the decision on appeal was final and therefore the nature of the enquiry contemplated by Section 234 was very limited and it partook the character of a ministerial enquiry rather than judicial enquiry. The Supreme Court further observed that it was difficult to hold that the magistrate who entertained the application was an inferior criminal Court and that the proceedings would at best be a proceeding of a Civil nature and not criminal. The Supreme Court added-

'That is why we think, whatever may be the character of the proceeding, whether it is purely ministerial or judicial or quasi-judicial, the Magistrate who entertains the application and holds the enquiry does so because ho is designated in that behalf and so he must be treated as a persona designate and not as a magistrate functioning and exercising his authority under the Criminal Procedure Code. lie cannot therefore be regarded as an inferior criminal Court.'

The facts of the case, which was considered by the Supreme Court are materially different from the facts of the present case. The Ajmer Merwara Municipalities Regulation prescribed the procedure by which the Municipality could order the removal or repairing of buildings which were found in a dangerous state. Notice was to be given to the owner to remove the building and if the owner failed the Municipality was empowered to remove it and recover the cost of the work done from the owner of the property. The Municipality was entitled to snake a demand for the amount and an appeal was provided for against the order of the Municipality under Section 93 (1) of the same Regulation. The machinery for collecting the demand provided by the Regulation was by an application to the Magistrate, who was empowered to direct the recovery of the tax by distress and sale of moveable property belonging to the defaulter. Thus it will be seen that the proceeding before a Magistrate was only for recovery of tax found due under the Regulation. The Magistrate was not exercising his powers as a Court and trying the owner for any offence punishable by him under the Regulation. Whereas in the present case the Magistrate was trying the assesses for an offence under Section 19 of the Kerala General Sales Tax Act, which was punishable with a fine. It is not disputed that so tar as the function of the, magistrate in trying the petitioner for an offence under Section 19 and imposing a fine is concerned, he was acting as a Court. The only question that was pressed before me is that when the Magistrate specified the amount of tax due as recoverable as if it were a fine under the Criminal Procedure Code, he was not acting as a Court. The decision of the Supreme Court does not in any way lend support to this contention.

17. In the State v. G. L. Udayawar, 1963 14 STC 628, the Mysore High Court held that the statement of the Supreme Court in : [1962]2SCR265 would be applicable to a magistrate functioning under Section 13 (3) (b) of the Mysore General Sales Tax Act and that the magistrate could not be regarded either as an inferior criminal court or as functioning or exercising authority under the Criminal Procedure Code. Section 13 (3) of the Mysore General Sales Tax Act runs as follows:

'Any tax assessed, or any other amount due under this Act from a dealer, may without prejudice to any other mode of collection, be recovered ......... (b) on application to any Magistrate, by such magistrate as if it were a fine imposed by him ........'

The Magistrate acting under Section 13 (3) (b) was not trying the asscssee for an offence, which would entail the imposition of fine. The tax was determined by the sales tax authorities and the application to the Magistrate was under Section 13 (3) (b) for the collection of the tax. The Mysore General Sales Tax Act is different from the Kerala General Sales Tax Act, in that a magistrate under the Kerala Sales Tax Act is trying the assesses for an offence which is punishable with imposition of fine, which may extend to Rs. 1000/-. Therefore, the decision of the Mysore High Court holding that a magistrate under Section 13 (3) (b) was not' a Court will not be of any assistance in cackling this case.

18. The Kerala General Sales Tax Act (Act XI of 1125) is more or less on the lines of the Madras General Sales Tax Act, 1939. Section 1:9 of the Kerala General Sales Tax Act corresponds to Section 15 of the Madras General Sales Tax Act, T939 Both the sections make the contravention of certain provisions of the Acts penal and punishable with line by a. Presidency Magistrate or a magistrate of the First Class. The magistrate while convicting the accused and sentencing him to pay a. fine is also empowered to specify the tax as recoverable as if it were a line. Suction 19 of the Kerala General Sales Tax Act provides that the arrears of tax shall be recoverable as it if were a fine under the Criminal Procedure Code for the time being in force. Section 15 of the Madras Genera; Sales Tax Act provides that the tax specified shall be recoverable as if it were a fine but does not slate that it shall be recoverable as fine under the Criminal Procedure Code. The difference in the language is not of any significance, as both the sections provide that the tax shall be recoverable as if it were a fine. The Madras General Sales Tax Act, 1959, is different from the two Acts above mentioned. Section 24 of the Madras General Sales Tax Act (Act I of 1959) provides for payment and recovery of tax. Under Section 24 (2) (b) any tax assessed or other amount under the Sales Tax Act may be recovered, on an application to any Magistrate, by such magistrate as if it were a fine imposed by him. Section 45 is the penal section and any assessee who contravenes certain provisions of the Act is made punishable by a Presidency Magistrate or a Magistrate of the First Class with a tine. Thus under Section 45 of the Madras General Sales Tax Act I of 1959 the magistrate acts as a Court, convicts a person and sentences him to pay a fine. The Court, while trying the offence, is not called upon to specify the tax as recoverable as if it were a fine. It may be contended that a magistrate acting under Section 24 of Madras Act I of 1959 is only a persona designate for the purpose of collection of tax.

19. A Presidency Magistrate or a First Class Magistrate, who is trying an offence under Section 19 of the Kerala General Sales Tax Act, is admittedly a criminal Court exercising jurisdiction tinder the Criminal Procedure Code, and as already observed the conviction and sentence passed by the Magistrate is clearly revisable. The Court, while convicting and passing a sentence of fine also specifies the tax as recoverable as a fine. Under Section 21 of the Kerala General Sales Tax Act it is provided that the assessment levied shall not be questioned by a criminal Court. It is difficult to appreciate the argument that the magistrate, while convicting and sentencing an assessee to a fine, acts as a Court but when the magistrate proceeds to write the next line in his order specifying the tax due as recoverable as fine, he is not doing it as a Court but only as a persona designata. In : AIR1919Bom93 , already referred to the High Court of Bombay, while dealing with Section 161 (1) of the District Municipalities Act, held that, though the power exercisable by the Magistrate under the first part of the section was judicial and the latter part ordinarily ministerial in nature, no differential treatment was intended in respect of the orders made by the Magistrate under sub-section (2). The above decision was not followed in : AIR1956All351 . The Allahabad High Court was unable to agree that a proceeding under the latter part of Section 161 (2) relating to the recovery of compensation and other expenses was one before a criminal Court, merely because the proceeding in prosecution under the earlier part was undoubtedly before a criminal Court. The Allahabad High Court also held that it did not follow that because a subsequent proceeding was before an inferior criminal court', the earlier proceeding also was before the criminal court, when the two proceedings were entirely distinct from each other. The Supreme Court in : [1962]2SCR265 refrained from expressing its opinion on the conflicting stand taken by the Bombay High Court and the Allahabad High Court. The Supreme Court held that in the case before it the proceeding before a magistrate was only a proceeding in the nature of recovery proceeding and was of a civil nature. The Supreme Court held that a magistrate, who entertained an application and held an enquiry because he was designated in that behalf must be treated as a persona designate and not as a magistrate functioning and exercising his authority under the Criminal Procedure Code. In the present case, as already observed, the Magistrate was exercising the functions as a Court, trying the assessee, convicting and sentencing him and in addition specifying that the arrear of tax is recoverable as fine. Taking all the circumstances of the present case into consideration, I would respectfully follow the view of the Bombay High Court in : AIR1919Bom93 and hold that the direction of the Magistrate specifying the arrears of tax as recoverable as fine is an order of an inferior criminal Court revisable under Section 435 Criminal Procedure Code.

20. Section 435 Criminal Procedure Code provides that the High Court may call for and examine the record of any proceeding before any inferior criminal court for examining the correctness, legality or propriety of any finding, sentence or order passed and as to the regularity of any proceedings of such criminal Court. Though the order specifying the arrears of tax as recoverable as fine is not a finding or sentence, it is an order made by a criminal court. It is not necessary that every order of a criminal Court should be criminal in nature, for, in which case, the order passed by a Magistrate under Sections 145, 488 and 517 Criminal Procedure Code will not be revisable. Section 435 clause (3) as it stood before the amendment of 1923 specifically excluded from the High Courts the power of revision of orders under Section 145, thus implying that but for that specific exclusion all orders passed by another Criminal Court which would affect the rights of parties are revisable by the High Court. The Magistrate was acting under the Criminal Procedure Code and was passing an order which had the effect of adjudicating judicially the liability of the assessee to pay the tax.

21. Finally it was contended by the Public Prosecutor that whatever may be the nature of the proceedings before the Additional First Class Magistrate of Ernakulam, the Chief Presidency Magistrate, while endorsing the warrant under Section 387 Criminal Procedure Code was acting only as persona designata. The Chief Presidency Magistrate while acting under Section 387 Criminal Procedure Code is acting under Chapter XXVIII which provides for the execution of sentence passed by a Criminal Court. It is not as if the Chief Presidency Magistrate is designated as a person for the purpose of discharging some duty different from that of a magistrate under the Criminal Procedure Code. The Chief Presidency Magistrate, while acting under Section 387 is bound to satisfy himself as to the legality of the warrant, though he cannot go into the correctness or otherwise of the assessment. But still it cannot be stated that the Chief Presidency Magistrate is not exercising his judicial functions. Under Sub-rules (7), (8) and (9) of Rule 290-A of the Criminal Rules of Practice framed under Sections 386 and 387, Criminal Procedure Code, the Chief Presidency Magistrate while endorsing the warrant is empowered to hear and dispose of claims relating to property attached under the warrant, which he has endorsed. As already pointed out, in all these rules the Chief Presidency Magistrate endorsing the warrant is referred to as a Court. The endorsement by the Chief Presidency Magistrate of the warrant is a judicial order acting as a Court and is therefore revisable by the High Court.

22. In the result, I hold that the order of the Chief Presidency Magistrate endorsing the warrant is revisable by the High Court. As the Chief Presidency Magistrate has not gone into the validity or otherwise of the warrant, he is directed to recall the warrant and after hearing the parties dispose of the matter according to law.


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