N.C. Talukdar, J.
1. These three cases, involving the same point, have been placed before us for orders. The point involved is one of procedure, arising out of the passing of the West Bengal Separation of Judicial and Executive Functions Act, 1970 (West Bengal Act VIII of 1970) which came into force on February 24, 1970 in certain districts, as to whether the previous procedure relating to the form of the notice of the Rule issued by the High Court has to be changed with regard to cases whereto the above-mentioned Act does apply. The point is of some importance and arises in the context of the reports submitted by the District Magistrate, Howrah, sending back the copies of the three notices to the Registrar, Appellate Side, High Court for information and necessary orders, on the ground that the Judicial Magistrate is no longer under his control.
2. The Rule in Criminal Revision Case No, 175 of 1971 was issued by a Division Bench of this Court on March 23, 1971 on the District Magistrate, Howrah, calling upon him to skive cause as to why the sentenoe imposed on the petitioner should not be reduced, Modified or altered etc., with a further direction that the accused-petitioner be released on bail to the satisfaction of the Sub-Divisional Judicial Magistrate, Howrah Sadar. The report by the District Magistrate, Howrah dated April 12, 1971 is as follows:
This also relates to Sri S. P. Sengupta, Judl. Magistrate, who is of under the control of D. M., Howrak. Return the same to the Asst. Registrar, High Court Cr. Rev. jurisdiction.
The Rule in Criminal Revision Case No. 157 of 1971 was issued by the Single Bench on March 11, 1971 calling upon the District Magistrate, Howrah as also the opposite party No. 2 to show cause as to why the order complained of should not be set aside and the proceedings in the case be not quashed with a further direction for an ad interim stay of all further proceedings in the Court below. The report by the District Magistrate, Howrah, dated April 21, 1971 is as follows:
Judicial Magistrate is not under the control of the District Magistrate, Howrah. So the explanation of District Magistrate does not arise. Return to the Asstt. Registrar, High Court, Appellate Side, Calcutta for information and taking necessary action.
The third Rule in Criminal Revision Case No. 159 of 1971 was also issued by the Single Bench on March 11, 1971 calling upon the District Magistrate, Howrah as also the opposite party to show cause as to why the order complained of should not be set aside with an order for ad interim stay, staying the operation of the order of maintenance complained of on condition that the second party petitioner shall go on depositing Rs. 65 per month as maintenance for the wife and the two children by the 7th of the following month. The report of the District Magistrate, Howrah, dated April 12, 1971 is as follows:
This relates to Sri S. P. Sengupta, Judl. Magistrate, 1st Class, Howrah, who is not under the control of District Magistrate, Howrah. This may be returned back to the Asstt. Registrar for sending the same to the S.D.J.M., Howrah.
3. Mr. S. Banerjee, D.L.R. appearing on behalf of the State submitted that the reports submitted by the District Magistrate, are based on a misconception of the position in law. The District Magistrate, according to Mr. Banerjee, continues to represent the State, and it is his duty to decide whether the State should be represented at the time of the hearing. In this context he referred to the case of Sin. Anurupa Devi v. Ramlal Rajghoria, reported in : AIR1952Cal395 .
4. The position before the passing of the West -Bengal Act (VIII of 1970) is quite clear. Under Section 439 of the Code of Criminal Procedure when a Rule was issued by the High Court, a notice thereof was served on the District Magistrate in addition to the private parties named as opposite parties therein, to enable the District Magistrate to inform the trying court and forward any explanation that may be submitted by it, in addition to his taking necessary steps for the representation of the State at the time of the hearing of the Rule. The procedure, with the reasons underlying the same, has been summed up by the Division Bench in the case of 55 Cal WN 160 : (A.I.R. 1952 Cal 395) wherein Mr. Justice K. C. Dasgupta (as His Lordship then was) delivering the , judgment of the court observed at page 163 that
It is in fact an invariable practice of this Court to issue a Rule on all applications for revision Under Section 439 of the Code of Criminal Procedure on the District Magistrate of the District, in addition to the private party, whether complainant or accused named as opposite party in the application. This is done for the very good reason that the District Magistrate represents the State in all such matters.
It was further observed that
When a Rule is issued on the District Magistrate, he does inform the trying court of the same and very often forwards to this Court any observations and explanations that may be submitted by the trying court, But that is only a part of his duty. It is equally his duty to decide whether the State should be represented in the hearing of the matter before this Court and if he decides that it should be done, to take necessary steps for the same.
It is therefore, abundantly clear that under the Code of Criminal Procedure Rules are issued by the High Court on the District Magistrate not because he is a post office between the High Court and the. trying court but for good reasons as he represents the State and is saddled with the clear and specific duty to take steps for the representation of the State in the hearing.
5. The position undoubtedly is a little different after the passing of the West Bengal Act VIII of 1970 and in order, to appreciate the same, it is pertinent to refer to some of its provisions. Before considering the said provisions, it must be observed, that the State is ultimately a necessary party in most of the Criminal cases. A reference may be made to the observations of Mr. Justice Mudholkar in the case of Thakur Ram v. State of Bihar, reported in : 1966CriLJ700 viz., that 'Barring a few exceptions in criminal matters the party who is treated as the aggrieved party is the State, which is the custodian of the social interests of the community at large.' To come back to the provisions of the new Act, Section 2 of the said Act lays down that 'The Code of Criminal Procedure, 1898, shall in its application to West Bengal, be amended in the manner and to the extent specified in the schedule.' Under Clause 13 of the Schedule, Section 17 of the Code of Criminal Procedure was substituted by several Sections, viz., 17 (1), 17 (2), 17A, 17B, 17C and 17D.
Section 17A lays down as follows:
(1) All Judicial Magistrates appointed Under Sections 12, 13A and 14 and all Benches constituted Under Section 15, shall, subject to the control of the Sessions Judge, be subordinate to the Sub-Divisional Judicial Magistrate and the Sub-Divisional Judicial Magistrate may from time to time distribute the business amongst such Judicial Magistrates and Benches consistent with this Code and the Rules framed by the High Court. (2) The Sub-Divisional Judicial Magistrate shall be subordinate to the Sessions Judge, (3) Notwithstanding anything contained in Sub-section (1) the Sessions Judge may, if for any reason he thinks fit so to do, distribute the business referred to in that sub-section amongst the Judicial Magistrates and Benches within the sessions division consistently with this Code and the rules framed by the High Court.
A reference may also be made to the provisions of Clauses 97 and 98 of the Schedule. By Clause 97 the word 'magistrate', wherever it occurs, was substituted by the words 'Judicial Magistrate' in Section 428 and as enjoined under Clause 98 in Section 435 (1) for the words 'District Magistrate, or any Sub-Divisional Magistrate empowered by the State Government' the words 'any Sub-Divisional Judicial Magistrate empowered by the State Government in consultation with 'the High Court' shall be substituted.
It is therefore clear that in view of the amended provisions, record;; now called for by the High Court should be called for from the Sub-Divisional Judicial Magistrate and the accused-petitioner is to be directed to be released on bail to the satisfaction of the Sub-Divisional Judicial Magistrate, who is also to stay the realization of the fine if any, or stay the operation of the order complained of, as directed by the High Court. In view of the provisions of Section 17A (2), the Sub-Divisional Judicial Magistrate is subordinate to the Sessions Judge and not the District Magistrate.
6. Having considered the practice that has obtained the imprimature of legal decisions and in view of the impact of the new Act and the amended provisions of the Code of Criminal Procedure, we ultimately hold that the Rule issued by this Court shall continue to be served on the District Magistrate as before, calling upon him to show cause as to why the conviction and sentence passed on the petitioner be not set aside, giving him thereby the opportunity to take steps for the representation of the State in the hearing of the matter. But with regard to the sending of the records, or releasing the accused on bail or staying the realization of the fine, if any, or of the operation of the order impugned, it shall be the duty of the Sub-Divisional Judicial Magistrate concerned to do so.
7. We. accordingly hold that the form of the notice to be issued henceforward shall be as follows: 'Let a Rule issue calling upon the District Magistrate and/or the opposite parties, if any, to show cause as to why the order complained of in the petition should not be set aside or to pass such further or other order or orders as to this Court may seem fit and proper. Let the records be sent for from the Sub-Divisional Judicial Magistrate and pending the hearing of the Rule (as the exigencies of the case would demand) let the petitioner be released on bail to the satisfaction of the Sub-Divisional Judicial Magistrate or let the realization of the fine be stayed or let the operation of the order complained of be stayed.'
The notices of the three Rules under report may be re-issued accordingly on the District Magistrate, Howrah, along with a copy of this order, as early as possible.
Ajay K. Basu, J.
8. I agree.