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Narayan Chandra Ghose and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 1219 of 1964 and Criminal Ref. Nos. 78 of 1965 and 8 of 1966
Judge
Reported inAIR1967Cal314,1967CriLJ735
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 2A, 10, 195, 514 and 515
AppellantNarayan Chandra Ghose and anr.
RespondentThe State
Appellant AdvocateSaroj Kumar Chakraborty, Adv. in Support of Reference and ;S.S. Mukherjee, Adv. and ;N.C. Banerjee, Amicus Curiae in Cri Ref. No. 8 of 1966;Chittatosh Mukherjee and ;Jamini Kumar Bhattacharya, Advs. i
Respondent AdvocateKishore Mukherjee, Adv. in Cri Revn. No. 1219 of 1964 and ;Purnendu Narayan Biswas, Adv. in Cri. Ref. No. 78 of 1965
Cases ReferredAjaib Singh v. Gurbachan Singh
Excerpt:
- .....raised may be formulated as follows : (1) whether the additional district magistrate has power to hear appeal under section 515, cr. p. c. (2) when an accused person is directed to be released on bail to the satisfaction of the district magistrate, whether the additional district magistrate is competent to accept the bail bond and ultimately draw up proceeding under section 514 cr. p. c. and impose penalty. (point no. 1)--in making the reference no. 78 of 1965 the learned sessions judge of maldah west dinajpur has stated that 'the statute has given only the district magistrate power to hear appeal according to the provisions under section 515 cr. p. c. and no power has been given to the additional district magistrate to hear appeal under the said section'. according to him, 'right to.....
Judgment:
ORDER

A.K. Das, J.

1. Criminal Revision No. 1219 of 1964 against an order of the Additional District Magistrate Midnapore, Criminal Reference No. 78 of 1965 by the Sessions fudge of West Dinajpore, Maldah and Reference No. 8 of 1986 from the Sessions Judge of Nadia are taken up together.

2. In the Reference matters, the applicants are practising muktears in the criminal courts who stood surety for accused persons either during trial or at the appellate stage. Eventually the convictions of the accused persons were upheld but the sureties failed to produce them for undergoing the sentence of imprisonment. Proceedings under Section 514 were drawn up and ultimately bail bonds were forfeited and penalty imposed. Appeal against the forfeiture or the bond and imposition of penalty was heard by the learned Additional District Magistrate purporting to act under Section 515 Cr. P. C.

3. In Criminal Revision No. 1219 of 1964 the accused appealed against an order of conviction to the High Court and was directed to be released on bail to the satisfaction of the District Magistrate. The bail bond was however accepted by the learned Additional District Magistrate who ultimately drew up proceeding under Section 514 of the Cr. P. C. forfeited the bail bond and imposed penalty. Certain other facts were mentioned in the references but as references were made on this point of law alone. I do not take those facts into consideration.

4. The questions raised centre round the power of the Additional District Magistrate to hear the appeal under Section 515, Cr. P. C. and the points raised may be formulated as follows :

(1) Whether the Additional District Magistrate has power to hear appeal under Section 515, Cr. P. C.

(2) When an accused person is directed to be released on bail to the satisfaction of the District Magistrate, whether the Additional District Magistrate is competent to accept the bail bond and ultimately draw up proceeding under Section 514 Cr. P. C. and impose penalty.

(Point No. 1)--In making the Reference No. 78 of 1965 the learned Sessions Judge of Maldah West Dinajpur has stated that 'The Statute has given only the District Magistrate power to hear appeal according to the provisions under Section 515 Cr. P. C. and no power has been given to the Additional District Magistrate to hear appeal under the said section'. According to him, 'right to hear appeal is a statutory power which cannot be exercised by an Additional District Magistrate even if he is vested with all the powers of the District Magistrate under the Code'. The learned Sessions Judge of Nadia has stated that 'District Magistrate under Section 515 Cr. P. C. does not include an Additional District Magistrate who is never a District Magistrate in law and is obviously below the District Magistrate in rank notwithstanding his appointment under Section 10(2) of the Cr. P. C. with all the powers under that Code and also under any law for the time being in force.'

5. In Criminal Revision Case No. 1219 of 1964 Mr. Chittatosh Mukherjee, learned Advocate for the petitioner has similarly argued that the High Court having granted bail to the satisfaction of the District Magistrate, the Additional District Magistrate was not authorised to accept the bail bond and consequentially, he was to competent to draw up proceeding and Section 514 Cr. P. C. or forfeit the ball bond.

6. The two learned Sessions Judges in making the references have referred to several reported decisions also. It is useful to set out the provisions of Section 515 Cr. P. C. which reads as follows :

Section 515 Cr. P. C.--'All orders passed under Section 514 by any Magistrate other than a Presidency Magistrate or District Magistrate, shall be appealable to the District Magistrate, or, if not so appealed, may be revised by him.' The question that arises is whether the appellate power given to the District Magistrates is available to the Additional District Magistrate also. Before proceeding further we may note the provisions of Section 10 of the Criminal Procedure Code which reads as follows :

District Magistrate.--(1) In every district outside the presidency-towns the State Government shall appoint a Magistrate of the first class, who shall be called the District Magistrate.

(2) The State Government may appoint any Magistrate of the first class to be an Additional District Magistrate and such Additional District Magistrate shall have all or any of the powers of a District Magistrate under this Code or under any other law for the time being in force, as the State Government may direct.

(3) For the purposes of Sections 192, Sub-section (1), (407, Sub-section (2)) and 528, Sub-sections (2) and (3) such Additional District Magistrate shall be deemed to be subordinate to the District Magistrate.

By Bengal amendment of the Code published in the Calcutta Gazette on the 11th May, 1966, Sub-section 2(a) was inserted and it reads as follows :

Sub-section (2-A)--A District Magistrate may, by a general or a special order, authorise an Addl. District Magistrate to do any act or take any action required by a court or other competent authority to be done or taken by the District Magistrate, if such act or action is within the powers conferred on the Additional District Magistrate under Sub-section (2) except where the District Magistrate is directed, expressly or by necessary implication, to do such act or to take such action himself.

It is true that the word District Magistrate under Section 515 does not by itself include the Additional District Magistrate but in view of the provisions of Section 10(2) of the Code, the Additional District Magistrate shall exercise all or any of the powers of a District Magistrate under the Code or in any other law for the time being in force as the State Government may direct. Sub-section (2) does not make an Additional District Magistrate District Magistrate of the District but it entitles him to exercise all or any of the powers of a District Magistrate under the Code. The appellate power that the District Magistrate exercises is under the Code and if the Additional District Magistrate exercises all or any of his powers under the Code under Section 10(2) Cr. P. C., he should be entitled to exercise the power under Section 518 Cr. P. C. also.

7. In making this reference, the learnedSessions Judge has relied upon Mahendra Bhumij's case reported in AIR 1921 Cal 347 and the Madhya Bharat Case reported in AIR 1951 Madh Bha 67. The question decided in the first case is whether the District Magistrate can hear an appeal from an order for furnishing security for good behaviour passed by an Additional District Magistrate and the Bench decided that the District Magistrate in exercise of the power under Section 515 Cr. P. C. had the same right. That decision is therefore no authority for the question that arises in the case before me--viz. whether the Additional District Magistrate can hear the appeals under Section 515 Cr. P. C. in view of Section 10(2) Cr. P. C. Incidentally, the learned Judge found upon the wording of Section 515 Cr. P. C. that though an Additional District Magistrate exercises all his powers, he is a 'Magistrate' other than the 'District Magistrate' and consequently an appeal lay to the District Magistrate. Indeed, when the Additional District Magistrate passed an order under Section 118 Cr. P. C., he apparently exercised his judicial power as a 1st class Magistrate, and as such, an appeal would lie to District Magistrate--he being a Magistrate other than a Presidency Magistrate or a District Magistrate. An Additional District Magistrate has a dual capacity, firstly as a first class Magistrate and secondly as an Additional District Magistrate; in his latter capacity he draws certain powers from the statute. Section 6 of the Cr. P. C. deals with the classes of criminal courts and provides for only five classes of courts which may be enumerated as follows: (1) Court of Session, (2) Court of Presidency Magistrate, (3) Magistrate of the 1st Class, (4) Magistrate of the second class, (5) Magistrate of the 3rd Class. Whenever Additional District Magistrate exercises the power of a Magistrate for trial of cases he exercises the powers of a Magistrate of the 1st Class. As an Additional District Magistrate, he is not presiding over the court of a Magistrate nor does he become the District Magistrate but merely exercises all or any of the powers of the District Magistrate. The decision of the Bench regarding District Magistrate's power to hear appeal from the Additional District Magistrate can in that view be supported.

8. It has also been pointed out that appellate power depends upon statutes which being plain in themselves must be held to have their ordinary significance unless such a construction leads to a result clearly contrary to the contention of the legislature. The conclusion therefore was that District Magistrate could hear an appeal from the order passed by Additional District Magistrate. It may however be pointed out that Sub-section (3) of Section 10 was incorporated after this Judgment and this Sub-section limits the judicial subordination of the Additional District Magistrate to the District Magistrate to Sections 192 Sub-section (1) and 528, Sub-sections (2) and (3) only. The entire question of District Magistrate's right to hear an appeal under Section 515 Cr. P. C. against an order by the Additional District Magistrate under Section 514 may have to be re-examined.Section 515 Cr. P. C. empowers the District Magistrate to hear any appeal against an order under Section 514 except from order of the Presidency Magistrate or the District Magistrate. The provisions excluding the District Magistrate's right to hear an appeal against the order of the District Magistrate would be meaningless, if the word 'District Magistrate' means a District Magistrate alone. This is more so in view of the fact that there can be only one District Magistrate in the District. It is one of the fundamental principles of law that a court cannot hear an appeal against its own order and no such provision under Section 515 would in that case be necessary. In view however of Section 10(2) giving the Additional District Magistrate the powers of a District Magistrate under the Code, the legislature in its wisdom provided against the District Magistrate hearing an appeal against an order passed by an Additional District Magistrate who was thereby exercising the functions which the District Magistrate would have exercised but for the provision in Section 10(2) of the Cr. P. C. The question of subordination of the Additional District Magistrate to the District Magistrate is irrelevant so far as the administrative subordination is concerned but Sub-section (3) of Section 10 provides that 'only for the purpose of Sections 192, Sub-section (1), 407 Sub-section (2) (this ought to have been deleted with the repeal of Section 407) and 528 Sub-sections (2) and (3), the Additional District Magistrate shall be deemed to be subordinate to the District Magistrate'. This subordination has been secured by a deeming clause which also supports the view that for all other judicial purposes the Additional District Magistrate exercising powers under the Criminal Procedure Code is not subordinates to the District Magistrate. If is also in my view, misreading the whole position to call the court of the Additional District Magistrate inferior to the District Magistrate. The provision excluding powers of the District Magistrate from hearing appeals from the orders of the Additional District Magistrate under Section 514 is therefore based on good reasons and this in my view is the only reasonable explanation for such express exclusion.

9. My attention has been drawn to a decision of the Madhya Bharat High Court reported in AIR 1951 Madh-Bha 67, Kaluram v. State of Madhya Bharat where the learned Judge held that the mere fact that Government has appointed a first class Magistrate to be an Additional District Magistrate having all the powers of the District Magistrate does not abrogate the powers which the Code vests in the District Magistrate. The learned Judge also held that the term 'District Magistrate' under Section 515 does not include an Additional District Magistrate and an appeal under that section can be heard only by the District Magistrate. I have already given my view as to why the word 'District Magistrate' in Section 515 includes Additional District Magistrate. This decision however made it clear that it did not decide the question whether with reference to other sections of the Code the term 'District Magistrate' can be held to include an Additional Magistrate and no opinion was expressed on that.

10. The learned Advocates appearing in support of the references have drawn my attention to several unreported decisions of this Court. Criminal Ref. No. 15 of 1965 (Cal) Kashinath Mondal v. The State by the Additional Sessions Judge of Maldah West Dinajpur, was decided on a finding that 'In this case, there is no material before me to show that any notification by the State Government was issued empowering the Additional District Magistrate to hear an appeal under Section 514 Cr. P. C. No decision on merits was taken and the decision therefore was on the facts of that cases alone. The next unreported decision of this Court is in Revision Case No. 6 of 1965 (Cal), Safaruddin Mia v. State of West Bengal. This is a single Bench decision by D.N. Das Gupta, J. who held that the Additional District Magistrate had no jurisdiction to hear the appeal although he might have been duly appointed under Section 10(2) of the Cr. P. C. to be an Additional District Magistrate with all the powers of the District Magistrate under the Code. The decision however is based upon the two decisions discussed earlier viz. Mahendra Bhumij's case, AIR 1921 Cal 347 and the Madhya Bharat case, AIR 1951 Madh-Bha 87 and I have already pointed out that the decisions therein would not be a sure guide for a decision of the point before me. The question however was again raised before the learned Judge sitting with R.N. Dutt, J. in Criminal Revn. No. 263 of 1965 (Cal), Bholanath Ghosh v. The State on being referred to by Neogi, J.D.N. Das Gupta, J. who delivered the judgment of the Bench however decided this reference on the point of entertainment of the appeal but refused to give any decision on the question of Additional District Magistrate's power to hear the appeal though pressed by the learned Standing Counsel appearing for the State. Reference was made to another in reported decision of this Court in Cr. Ref. No. 10 of 1966 (Cal). The State v. Kanakendra Nath Bit where T.P. Mukherji, J. in delivering the judgment of the Bench held that the authority empowered to hear appeal or revisional applications under Section 515 Cr. P. C. is the District Magistrate and the District Magistrate alone. The learned Judge found that the Additional District Magistrate was subordinate to the District Magistrate for purposes of that section because an Additional District Magistrate is a Magistrate other than the District Magistrate. He therefore held that the power to hear appeal being a power which under the Code itself, is exercisabte by the District Magistrate only cannot be vested or exercised by any other officer. The subordination of the Additional District Magistrate to that of the District Magistrate is mentioned in Sub-section (3) of Section 10 but his Lordship's attention was not drawn to this. Indeed the subordination is in respect of two sections of the Code itself and the Code clearly excludes Section 515 from the scope of that subordination. That decision therefore does not lay down a general principle of law but must be treated as a decision in the facts and circumstances of that case alone.

11. Mr. Chittatosh Mukherjee has also referred to a decision of the Supreme Court reported in AIR 1965 SC 1619, Ajaib Singh v. Gurbachan Singh, but that decision has no application in the facts of the present case. It was held that the State Government cannot delegate the power to detain to any officer who is lower in rank than the District Magistrate. The appointment of a District Magistrate has to be made under Section 10(1) of the Cr. P. C. Even if an Additional District Magistrate has been appointed under Section 10(2) of the Cr. P. C. with all the powers under that Code and also under any other law for the time being in force he is still not the District Magistrate unless the Government appoints him as such under Section 10 (1) of the Code. Even if an officer is exercising the powers of the District Magistrate on there being a vacancy in the office of the District Magistrate under Section 11 Cr. P. C., he is still not the District Magistrate until he is appointed as such under Section 10(1) of the Code. The question raised in the instant case is however entirely different and this decision is no authority for the proposition raised before me.

12. On a review of the entire position it seems to me that Section 515 read with Section 10(2) of the Cr. P. C. clearly authorises the Additional District Magistrate to exercise all the functions of the District Magistrate under Section 515 Cr. P. C. and he therefore can hear an appeal like any District Magistrate and in the instant cases the appeals having been heard against orders of inferior courts, namely, that of the Magistrates, the decision by the learned Additional District Magistrate is within jurisdiction and binding on the parties. This disposes of the first point.

13. The second point is only incidental to the first point. If this Court directed furnishing of bail bond to the satisfaction of the District Magistrate and if acceptance of bail bond is a function to be exercised by the District Magistrate within the provisions of the Criminal Procedure Code, the Additional District Magistrate is equally competent to accept the bail bond by virtue of that order.

14. In the light of what I have stated, the recent amendment by insertion of Sub-section (2-A) to Section 10 seems redundant Indeed, if such act or action is within the powers conferred on the Additional District Magistrate under Sub-section (2), why an authority from the District Magistrate would be necessary at all?. I wonder if the amendment will not make confusion worse confounded.

15. The result is that the References are rejected. So far as Revision Case No. 1219 is concerned, Mr. Mukherjee also raised a question of hardship and prayed for reduction or the amount of the penalty imposed. After hearing Mr. Mukherjee I think that the amount of the penalty imposed should be reduced to Rs. 1,000 for each surety. Subject to this the Rule is also discharged.

16. This judgment will govern all the three matters, namely, Criminal Revision No. 1219/64, Criminal Reference No. 78 of 1965 and Criminal Reference No. 8 of 1966.


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