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Bholanath Dhar and ors. Vs. Gour Gopal - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. Case No. 1165 of 1952
Judge
Reported inAIR1953Cal777,58CWN11
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 145, 145(4), 192(1), 435, 439(1) and 559(1)
AppellantBholanath Dhar and ors.
RespondentGour Gopal
Appellant AdvocateBinayak Nath Banerjee and ;Bibhuti Bhusan Das Gupta, Advs.
Respondent AdvocateS.S. Mukherjee and ;Hemendra Nath Banerjee, Advs.
DispositionApplication fails
Cases ReferredBahadur v. Eradatullah Mullick
Excerpt:
- .....of the disputed ]and and forbidding disturbance of such possession by the second party. the disputed land is the eastern half of c. s. plot 113 of 'mouza' gangarampur, p. s. behala measuring .09 acre, on the cattle shed road of south suburban municipality. c. section plot 113 in its entirety measuring .18 acre belonged to pramatha nath, mukherji, who sold the western half by a 'kabala', on 7-3-20 to gopal dhar, father of bholanath dhar, second party-petitioner 1, and who sold the eastern half of the plot on the same day to haripada maity by another 'kabala'. haripada maity is the tenant recorded in the c. s. 'khatian' in respect of the eastern half of the plot, i. e. in respect of the disputed land.the first party gourgopal chakravarti purchased the disputed land on 24-9-47 by a.....
Judgment:

Sen J.

1.This revisional application is directed against an order of Sri S. L. Banerji, Magistrate first class, Alipore, in a proceeding under Section, 145, Cr. P. C., declaring the first party's right to the possession of the disputed ]and and forbidding disturbance of such possession by the second party. The disputed land is the eastern half of c. s. plot 113 of 'Mouza' Gangarampur, P. S. Behala Measuring .09 acre, on the Cattle Shed Road of South Suburban Municipality. C. Section Plot 113 in its entirety measuring .18 acre belonged to Pramatha Nath, Mukherji, who sold the western half by a 'kabala', on 7-3-20 to Gopal Dhar, father of Bholanath Dhar, second party-petitioner 1, and who sold the eastern half of the plot on the same day to Haripada Maity by another 'kabala'. Haripada Maity is the tenant recorded in the c. s. 'khatian' in respect of the eastern half of the plot, i. e. in respect of the disputed land.

The first party Gourgopal Chakravarti purchased the disputed land on 24-9-47 by a 'kabala' in the name of his wife Suprova Debi from the heirs of Haridapada Maity who died in 1944. The case of the first party was that ever since the purchase in the name of his wife, he was in possession of the disputed land; that on the last Sunday of May 1950 (28-5-50) he was informed that the second party had made an excavation on the disputed land for making the plinth of a building and had also collected building materials on the land; and so he sent his clerk and other men to the land to protest, but the second party threatened them with violence and compelled them to leave the place. Thereupon the first party filed a petition before the Subdivisional Officer upon which the proceeding under Section 145 was started.

The case of the second party was that Gopal Dhar not only purchased the western half of c. s. plot 113, but that he also purchased the eastern half thereof though in the 'benami' of Haripada Maity; that Gopal Dhar was all along in possession of the entire plot till his death when the land devolved on his son Bholanath Dhar; that Bholanath transferred 2 'kathas' of the disputed land to his wife Binodini (petitioner 4) and 4 'kathas' to his daughter Sudharani (petitioner 3) end that Sudharani had started construction of a building on the disputed land in February 1950 and not in May 1950 and that Sudharani and her husband Sushil Das (petitioner 2) were in possession of the disputed land.

2. On the petition filed before the S. D. O. by the first party Gourgopal Chakravarti, the S. D. O. Sri P. M. Sanyal on 31-5-50 issued an order under Section 144, Cr. P. C., on the second party directing them not to go upon the disputed land and not to proceed with the construction of the building on the land and to show cause by 15-6-50. After hearing both parties and considering the police report received in the meantime, the Section D. O. Sri F. M. Sanyal on 23-6-50 drew up proceedings under Section 145, Cr. P. C., and also attached the disputed land under Section 145 (4), Cr. P. C. On 29-8-50 written statements having been filed by both parties, Sri A. B. Mukherji transferred the case to Sri S. L. Banerji, Magistrate, first class, for disposal. Sri S. L. Banerji heard the case and passed final orders on 3-9-52 declaring the first party's right to possession in the disputed land.

3. Three points have been urged in support of this revisional application by the second party --firstly, that Sri S. L. Banerji had no jurisdiction to try the case, the case not having been validly transferred to him; secondly, that the learned trying Magistrate dealt with the question of title and not with the question of actual possession and that, therefore, his order cannot be sustained; and thirdly that there was defect of party inasmuch as notice of the proceedings under Section 145 was not served on the ladies, viz., Sudharani and Binodini.

4. A preliminary objection has been urged on behalf of the first party O. P., viz., that this revisional application is not maintainable as no application was filed before the Sessions Judge, Alipore, for referring the case to the High Court under Section 438, Cr. P. C. This argument is based on the principle that when a superior court and an inferior court have concurrent jurisdiction in a matter, the inferior court should be moved first. This is, however, not a case where the High Court and the Sessions Judge have concurrent jurisdiction; it is only the High Court that can set aside or modify an order passed by a Magistrate in a proceeding under Section 145, Cr. P. C., the Sessions Judge could only refer the case to the High Court under Section 438, Cr. P. C., for order if he were satisfied that there was any illegality in the order of the Magistrate. It is no doubt true that there are rulings to the effect that even in such cases the Sessions Judge ought to be moved first, but the rulings are not uniform and it has been held in some cases that where the High Court has issued a rule, the matter should be disposed of on merits even if the Sessions Judge has not been moved.

It is not necessary to discuss the case law on this question, for the statute is clear; Section 439 Subsection (1), Cr. P. C., provides that the High Court may in its discretion exercise its revisional powers in the case of any proceeding the record of which has been called for by itself, or which has been reported for orders, or which otherwise comes to its knowledge. Thus the High Court may deal with cases reported under Section 438 by the Sessions Judge or the District Magistrate, as well as with cases of which the records have been directly called for by itself. The High Court's power to call for records is not restricted to the cases in which the Sessions Judge or the District Magistrate has been moved, even though under Section 435, Cr. P. C., the High Court, the Sessions Judge and the District Magistrate have a concurrent jurisdiction to call for the records of any case. The preliminary objection, therefore, fails.

5. The first point urged on behalf of the petitioners is that Sri S. L. Banerji had no jurisdiction to try the case as the case was not validly transferred to him. Sri P. M. Sanyal, Section D. O., heard both parties and considered the police report and then drew up proceedings under Section 145, Cr. P. C., on 23-6-50; he therefore took cognisance of the case and it is urged that under Section 192 (1), Cr. P. C., he alone was competent to transfer the case to another Magistrate for disposal; and, that the transfer made on 29-8-50 by Sr. A. B. Mukherji was without jurisdiction. If Sri A. B. Mukherji had been merely a First Class Magistrate of Alipore, no doubt the contention above would have been unanswerable. But it has appeared that on 29-8-50 Sri A. B. Mukherji was the S. D. O. at Alipore, having taken over from Sri F. M. Sanyal in the meantime. As successor in office to Sr. F. M. Sanyal he must be deemed to have stepped into the shoes of Sri F. M. Sanyal and he could, therefore, transfer all cases in which Sri F. M. Sanyal had taken cognisance. This follows directly from the terms of Section 559 (1), Cr. P. C.

6. On behalf of the petitioners it has, however, been urged that Section 559 (1), Cr. P. C. strictly interpreted does not authorise a successor S. D. O. to transfer the cases of which cognisance was taken by his predecessor. Section 559 (1) runs as follows--

'Subject to the other provisions of this Code, the powers or duties of a Judge or Magistrate may be exercised or performed by his successor-in-office.'

Section 192 Sub-section (1), Cr. P. C., runs as follows

'Any Chief Presidency Magistrate, District Magistrate or Subdivisional Magistrate may transfer any case, of which he has taken cognisance, for inquiry or trial, to any Magistrate subordinate to him.'

Since a Subdivisional Magistrate's powers may be exercised by his successor-in-office 'subject to the other provisions of this Code' and since the Code provides that a Subdivisional Magistrate may transfer a case 'of which he has taken cognisance', it is urged for the petitioners that the successor S. D. O. cannot transfer cases of which he has not taken cognisance, being subject to the provisions that only a Magistrate who has taken cognisance of a case may transfer the case. In support of this proposition, reference is made to some observations made by Biswas J. in the case -- 'Ramkrishna Sinha v. Emperor : AIR1938Cal195 ; referring to Section 559, Cr. P. C., the learned Judge observed as follows--

'A difficulty may, however, arise in applying this section, from the words 'subject to the other provisions of this Code'. These words may be supposed to exclude Section 192 from the operation of Section 559. If Section 559 is read subject to Section 192, it may well mean that the powers under the latter section are not intended to be exercisable by a successor-in-office. The question is not free from difficulty, and as Clause (f) of Section 529 would be enough to dispose of this case, we do not feel called on to express any opinion on this point.'

Biswas J. was dealing in the above case with the question of validity of a transfer of a case to himself by the second officer who was dealing with the general file of the Subdivisional Officer during the temporary absence of the latter from the headquarters. The learned Judge observed that in such a case there was undoubtedly a defect of jurisdiction, but held that in the view generally taken by the Calcutta High Court, the defect was cured by Section 529 (f). There has, however, been a departure in recent cases from the view that such a defect can really be cured by Section 529 (f); vide -- 'Tulsibala Rakhit v. N. N. Hosal', : AIR1953Cal109 (B) and -- Khudiram Ghosh v. State', : AIR1953Cal573 (C) where the contrary view has been taken. In the present case it is not argued for the opposite party that Section 529 (f) has any application; it is, however, urged that Section 559 (1) is a sufficient answer to the contention that the transfer was invalid.

7. There appears to be no case where this particular question, viz., the powers of a successor-in-office under Section 559, has been directly considered. In -- 'AIR 1938 Cal 195 (A)' the question was touched upon but not decided. The tentative discussion in that case gives only one side of the picture but does not touch the other side. A functionary like the Sub-divisional Officer has powers by virtue of his office under various sections of the Code; the exercise of these powers does not depend on his being the successor-in-office of another functionary. Thus a Sub-divisional Officer may under Section 190 by virtue of his office take cognisance of offences and under Section 192 (1) transfer any case of which he has taken cognisance to any other Magistrate subordinate to him. It is only when he has to deal with matters partly dealt with by his predecessor that the question comes of his exercising powers of this predecessor.

The Sub-divisional Officer transfers a case of which he has taken cognisance himself, by virtue of his own powers of office; but when he transfers a case of which cognisance was taken by his predecessor, he exercises, by virtue of Section 559 (1) the powers of his predecessor to transfer a case of which the predecessor had taken cognisance. To take another instance, a Magistrate taking cognisance of an offence when satisfied that there is sufficient ground for proceeding shall issue summons or warrant against the accused under Section 204; in this matter, where a Magistrate, who has himself received the petition of complaint and taken cognisance of the case, issues the summons or the warrant, he exercises the powers conferred on him by virtue of his office, but where his predecessor had received the complaint and taken cognisance and the Magistrate issues the summons or the warrant on receiving the report of an inquiry under Section 202 ordered by his predecessor, be exercises the powers of his predecessor by virtue of Section 559 (1).

On behalf of the petitioners, it has been urged that this interpretation ignores the words 'subject to the other provisions of this Code.' The reply is that the words are by no means ignored; a successor-in-office is bound by the other provisions of the Code. For instance, where a Second Class Magistrate succeeds a First Class Magistrate as the S. D. O., he cannot try cases triable by a First Class Magistrate by claiming to exercise the powers of his predecessor in office, and a successor is further subject in the matter of trial of a part-heard case to the provisions of Section 350. Thus the interpretation made above does not ignore any of the words of Section 559 (1).

On the other hand, the interpretation that P. successor S. D. O., cannot deal whether under Section 204 or Section 192 with matters of which he did not take cognisance would make Section 559(1) altogether infructuous; it would be difficult to say in that case that the legislature enacted Section 559 for any useful purpose. An interpretation having this result cannot be regarded as correct. It must be, therefore, held that a Subdivisional Officer can by virtue of Section 559(1), Cr. P. C., transfer to a Magistrate subordinate to him a case of which a cognisance was taken by his predecessor; and that, therefore, this particular case under Section 145, Cr. P. C., was rightly and validly transferred by the then S. D. O. Sri A. B. Mukherji to Sri S. L. Banerji, a Magistrate subordinate to the S. D. O. and that, therefore, Sri Banerji had jurisdiction to try the case.

8. Section 599(1), Criminal P. C., relating to the powers of the successor-in-office was enacted only in 1923. The question naturally arose also before 1923 whether and when the successor-in-office could exercise the functions of his predecessor. The general trend of decisions was that the word 'court' implied an idea of continuity, and that the powers under the Code having been conferred on courts, they could be exercised by the successor-in-office (vide Chitaley and Rao's Criminal Procedure Code, note 1 to Section 559). The Calcutta High Court definitely took that view. As early as 1868, in interpreting the provision that the court which sentences an offender to fine may levy the fine (Section 61 of the Code of 1861, corresponding to Section 386 of the present Code) it was held that the successor-in-office of the Judge or the Magistrate who passed the sentence might levy the fine imposed by his predecessor, vide Chunder Coomar Mitter v. Madhoosoodun Dey', 9 W. R. Cr. 10 (FB) (D). The principle of continuity of a court was affirmed by another Full Bench in 1910 in -- 'Bahadur v. Eradatullah Mullick', 37 Cal 642 (E), where it was held that in respect of offences specified in Clauses (b) and (c) of Sub-section (1) of Section 195, the successor-in-office of the Judge or Magistrate before whom the offence was committed was competent to make the complaint. The provision of the Code is that where any of the aforesaid offences is committed in or in relation to a proceeding in any court, such court or some court to which such court is subordinate may make the complaint; it was held that the court continued the same notwithstanding a change of officers presiding therein and, therefore, the term 'such court' included the officer before whom the offence was committed as well as his successor-in-interest.

Presidency Magistrate and Magistrates of the first and second (and third) classes are courts when acting judicially, vide Section 6 of the Code; the Subdivisional Magistrate and the Chief Presidency Magistrate are also Courts appointed under Chapter 2 of the Code. A Chief Presidency Magistrate or a Subdivisional Magistrate takes cognisance of offences and cases as a Court; therefore the power of transfer of a case of which a Presiding officer of a Subdivisional Magistrate's court or a Chief Presidency Magistrate's court has taken cognisance may be exercised by his successor-in-office. This has always been the practice and there has been no difficulty in this matter, for the practice is founded on sound law.

9. The next point urged for the petitioners is that the learned Magistrate in dealing with the case relied upon the documentary evidence as if it were a title suit, and did not decide the case on the evidence as to actual possession. It is true that in a proceeding under Section 145 the main point for decision is the actual possession, or where dispossession took place within two months before the drawing up of the proceedings, the main point is actual possession prior to the alleged date of dispossession. But the Magistrate in such a proceeding has to peruse the written statements put in by the parties who claim the right to possess the subject-matter of the dispute, and to consider the effect of all such evidence as may be produced by the parties respectively (Sub-section 4), and so the Magistrate must consider and deal with the documentary evidence produced in the case.

The documentary evidence in the case is 'prima facie' in favour of the first party O. P.; the c. s. Khatian as well as the Municipal assessment register showing the name of the first party's pre-decessor-in-interest Haripada Maity; and the assessment register showing also the name of Suprava Bebi (wife of the first party) after the purchase of the disputed land in her name; moreover the existence of two 'kabalas bearing the same date and executed by the same vendor in respect of the two parts of c.s. plot 113, in favour of Haripada Maity and Gopal Dhar respectively, is apparently against the petitioners' case that Gopal purchased the disputed land in the 'benami' of Haripada. It was the duty of the learned Magistrate to consider all this documentary evidence. If the learned Magistrate had, however, relied entirely or even chiefly on the documentary evidence, he would undoubtedly be wrong; for the question of actual possession and the date of such possession are the most important questions in the proceeding.

But the learned Magistrate did not overlook these points; he discussed the oral evidence carefully and came to the definite conclusion that the first party was in possession till the first week of Jyaishtha 1357 E. S., i.e., the 3rd week of May 1950, and that the second party started construction of the building on the disputed lend from the 4th or 5th of 'Jyaishtha' 1357 B. S. It has been urged for the petitioners that the proceedings were drawn up on 23-6-50 and the land was attached at the same time; and then it was found that there was a building on the disputed land the construction of which had proceeded up the first floor level (ground floor roof level) and that if the construction had started on the 18th or 19th May, 1950, it could not have proceeded to that extent by 23-6-50, all the more because there was an injunction against construction issued on 31-5-50.

There was evidence, however, that the petitioners pushed on construction by employing many men, and P. W. 3 stated that construction went on at night also. Hence it could not be said that the existing building could not have commenced on 18th or 19th May and that it must have commenced in February or March as alleged by the petitioners second party. There was evidence in support of the finding on the questions of fact made by the learned Magistrate; and he did not overlook the importance of the question of actual possession and the time thereof; and therefore there is no substance in the point urged.

10. The last point is that there was defect of party as notice of the proceeding under Section 145 was not served on the ladies, petitioners 3 and 4. It appears from the order sheet of the case that though Sudharani and Binodini were made parties, notices on them were not properly served; the first party filed a petition for reissue of notice on them but the learned Magistrate observed as follows, vide his order dated 6-10-50 :

'Considered the petition of the first party. As the husbands of Sudharani Dasi and Einodi Dasi have been made parties in the case and as they in their written statements have admitted possession through their wives (perhaps the learned Magistrate meant on behalf of their wives) I do not find any reason for including Sudharani Dasi and Binodini Dasi as members of the second party'.

The ladies were originally made parties but after defective service of notice on them, no fresh notice was issued on them and, therefore, it has to be deemed that they were not validly made parties. But an order under Section 145, Cr. P. C., is not bad merely because all interested persons are not made parties. So on this ground there is no reason to set aside the final order of the learned Magistrate. The order is valid so far as the parties actually before the learned Magistrate are concerned.

11. Hence this application fails and the rule is discharged.

Mitter, J.

12. I agree.


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