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Madhusudan Mistri Vs. Assistant Registrar of Co-operative Societies - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1978CriLJ570
AppellantMadhusudan Mistri
RespondentAssistant Registrar of Co-operative Societies
Excerpt:
- .....an order dated 14-1-78 passed by the sub-divisional judicial magistrate, bongaon, issuing a search warrant -on 1fhe 'prayer of the assistant registrar of 'co-operative 'societies, 24 parganas (north).2. the facts leading to the issuanee of the search warrant may be stated ,as follows; on 3-6-75 the assistant -registrar of the co-operative societies,, 24 parganas (north) filed .an application before ,the sub-divisiomal magistrate, bongaon, under s-124 (1) of the wast bengal co-qperatlve societies act, 1973 /hereinafter xeferxed to as the act) alleging inter alia .that madhusudan mislay, the ex-secretary of jranchita fishermen's co-operative .societies limited (hereinafter neferned to as is society) has not handed over ,books of accounts of the. society including ,other assets to.....
Judgment:
ORDER

Monoj Kumar Mukherjee, J.

1. This Rule is directed against an order dated 14-1-78 passed by the Sub-Divisional Judicial Magistrate, Bongaon, issuing a search warrant -on 1fhe 'prayer of the Assistant Registrar of 'Co-operative 'Societies, 24 Parganas (North).

2. The facts leading to the issuanee of the search warrant may be stated ,as follows; On 3-6-75 the Assistant -Registrar of the Co-operative Societies,, 24 Parganas (North) filed .an application before ,the Sub-Divisiomal Magistrate, Bongaon, under S-124 (1) of the Wast Bengal Co-qperatlve Societies Act, 1973 /hereinafter xeferxed to as the Act) alleging inter alia .that Madhusudan Mislay, the Ex-Secretary of JRanchita fishermen's Co-operative .Societies Limited (hereinafter neferned to as is Society) has not handed over ,books of accounts of the. Society including ,other assets to (the .present Secretary .of the Society Sri Dinahandhu Ear in spite of repeated directions. He, accordingly, prayed .that ,an order may be issued Under Section 134(2) of the Act directing a PoJioe Officer and below the rank of Sub-Inspeotor to seaatch, ?seize and to hand over possession of the hooks of accounts including its other assets to IMnabandhu Kar, the opposite paitfy No. 8 The learned Sub-Divisional Magistrate being of the view that he has gat no jurdsoHction for issuing search warrant under the said Act, forwarded the application to the Sub-Divisional Judicial Magistrate, Bongaon, for taking necessary action from his end. Before any order could be passed thereon by the Sub-Divisional Judicial Magistrate, Bongaon, the Assistant Registrar of the Co-operative Societies renewed his earlier prayer by -filing another application under his Memo. No. 6116 dated 21-36-75 before the Sub-Divisional judicial Magistrate, Bongaon. This application was placed before the learned Sub-Divisional Judicial Magistrate- on 2-7-7.5 and the learned Magistrate passed an order directing issuance of a seaarch warrant for the recovery of the1 articles mentioned in the petition and asked the- Officer-in-Charge, Bongos Police Station, to execute the warrant and if the articles were recovered to keep the same in jimmai of the present Secretary.

3. On the self same day, after the order was passed, the petitioner Madhusudan Mistry filed an application before the learned Magistrate praying for a hearing in the matter before any search warrant was issued and the learned Magistrate fixed a date fox hearing, of the matter and directed that the earlier order for issuing search warrant be stayed till the hearing. On 4-7-75 the State also entered appearance and prayed for being heard before passing any order on the application of the petitioner. The matter was ultimately heard on 5-8-75 and the learned Magistrate by his order dated 9-8-75 rejected the prayer of the Assistant Registrar of the Co-operative Societies for issuing search warrant- Before the order was passed on 9-8-75, Dinabandhu Kar also filed an application for being heard, but the said application was rejected. Dinabandhu Kar, being aggrieved by both the orders, namely, the order refusing his prayer to be heard as. also the order rejecting the prayer of the Assistant Registrar for issuing search warrant, filed an application in revision in the Court of the Sessions Judge, 24 Parganas and by an order dated 29-11-75 the Additional Sessions Judge, 14th Court, Alipore, allowed the revisional application of Dinabandlm Kar and set aside the order of the learned Sub-Divisional Judicial Magistrate dated 9-8-1975. The learned Judge directed that the matter for issuance of the search warrant should1 be heard afresh in presence of Dinabandhu Kar, the State and Madhusudan Mistiiy, In compliance with the direction of the learned1 Additional Sessions Judge, the Sub-Divisional Judicial Magistrate heard the matter in presence of all the parties and by his order dated 14-1-1976 allowed the prayer of the Assistant Registrar of Co-operative Societies and issued a search warrant, He, further, directed that if the properties as mentioned in the petition are seized the same shall be handed, over to the present Secretary, Dinabandhu Kar. Against the said order dated 14-1-1976 the petitioner moved this Court and obtained the present Kule.

4. Mr. Dilip Kumar Bose appearing for the petitioner firstly contended that inasmuch as the application for the search warrant was not in conformity with the provision of Section 124 (1) of the Act the learned Magistrate had no jurisdiction to issue a search warrant under Sub-section (2) of the said Section. According to Mr. Bose, before a search warrant can be issued under the said Section the learned Magistrate has to. be satisfied that the appropriate authority mentioned therein was resisted in or prevented from taking possession of any books, accounts etc. In absence of any such allegation in the application Under Section 124 (1) of the Act the learned Magistrate was not justified in issuing the search warrant- In this connection Mr. Bose has referred to both the Memos. filed by the Assistant Registrar wherein the only allegation that has been made is that tile petitioner was not handing over books of accounts of the Society including other assets to the present Secretary. According to Mr. Bose such refusal to hand over the books of accounts does not amount to resistance or prevention and therefore, Section 124 (1) of the Act has no application. Mr. Roy appearing for Dinabandhu Kar, the opposite party No. S, on the other hand contended that prevention Under Section 124 (1) does not necessarily mean a positive act and in a given case can also mean an illegal omission. According to Mr. Roy in the facts of the instant case refusal on the part of the petitioner to hand over the books amounted, if not to resistance to prevention, as due to such omission on the part of the petitioner to hand over the books in spite of repeated requests the appropriate authority was prevented from taking possession of the books. In this connection Mr. Roy has referred to the meaning of the word 'prevent' as appearing in Stroud's Judicial Dictionary, 4th Edition wherefrom it appears that the word 'prevent' does not mean only an obstruction by physical force. My attention has also been drawn by Mr. Roy to a decision reported in : AIR1970Guj209 . In this case while considering the meaning of the word 'prevention' under the Prevention of Food Adulteration Act the Gujarat High Court held that a positive action in the form of physical obstruction, threat or assault is not necessary to constitute the act of prevention. Having given my anxious consideration, I am in agreement with the [interpretation of the word 'prevent' as given in both the Stroud's Dictionary as also the decision referred to above. In the context of the purpose which Section 124 of the Act seeks to achieve a narrow and restrictive meaning cannot be given to the word 'prevent' as that will defeat the said purpose. It appears to me that Section 124 of the Act was enacted to give certain powers to the appropriate authorities under the Act against a recalcitrant official and in case of failure or refusal on the part of such an official to hand over documents etc-, the authorities mentioned therein have been given the right to apply before the appropriate Magistrate for search warrant. It is not expected that the authority concerned must be present to receive the documents and wait for hearing formally resisted or prevented, before making any prayer before the Magistrate for a search warrant. In my view, by refusing to hand over the documents and assets the petitioner has prevented the authorities from taking possession of the books and assets which they were legally entitled to under the Act and, therefore, Section 124 (1) is squarely applicable in the facts of the instant case. The first contention of Mr. Bose, therefore, fails.

5. Mr. Bose next contended that inasmuch as the first application for search warrant was filed before the Sub-Divisional Magistrate, that is, the Executive Magistrate and the same having not been entertained by him, the self same application could not have been dealt with by the Sub-Divisional Judicial Magistrate. I am unable to accept this contention. Section 3 (3) of the Cr.PC 1973, specifically provides that unless the context otherwise requires, any reference in any enactment passed before the commencement of the Act to a Magistrate. There is no controversy that the Act came into force before passing of the Cr.PC 1973 and as such a Magistrate of the First Class in Section 124 (1) of the Act must necessarily mean a Judicial Magistrate. The learned Executive Magistrate, therefore, was right in holding that he had not the necessary powers under the Act to issue search warrant and in directing that the application be sent to the Sub-Divisional Judicial Magistrate for disposal. In this connection Mr. Bose has also referred to Section 411 of Cr.PC 1973 and contended that the learned Executive Magistrate could not have transferred this application to the Judicial Magistrate. Section 411 of the Cr.PC 1973 has no application inasmuch as, in the instant case there was no question of any transfer whatsoever and the Executive Magistrate only forwarded the application to the appropriate authority. In view of my above finding, the other contention of Mr. Pose that the learned Sub-Divisional Judicial Magistrate could not have acted on the second application also fails.

6. Mr. Bose in the next place contended that the Assistant Registrar of Co-operative Societies was not legally entitled to file the application for search warrant as such a power vested only in the Registrar. Mr. Roy in reply to this submission of Mr. Bose contended that Section 9 of the Act provides that the State Government may appoint a person to be Registrar of Co-operative Societies, West Bengal and may appoint persons to assist him, and in exercise of the powers under the said Section the Assistant Registrar have been authorised by the State Government by a notification 'dated 12-8-1955 to exercise all the general powers under the Act. This notification, however, has not been prodxiced before me but such non-production does not detain me. No such contention was earlier raised so as to give an opportunity to the Assistant Registrar to prove his authority Under Section 124 of the Act, and I am not inclined to entertain this contention at this1 belated stage- That apart, official act must be presumed to have been regularly performed unless of course such presumption is rebutted by cogent materials. The onus of such rebuttal being on the petitioner and the petitioner having not been able to discharge the said onus, I do not find any substance in this contention of Mr. Bose.

7. As no other contention was raised by Mr. Bose this application fails and the Rule is discharged.

8. Let the records be sent down as early as possible.


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