Asutosh Mookerjee, Actg. C.J.
1. The events which have led up to the present Rule have been fully narrated in the judgment delivered by Mr. Justice Chatterjea and Mr. Justine Cuming on the 2nd July 1920, in the case of Alt Mohammad Mondal v. Sakiruddi hunshi (Piggot) 59 Ind. Cas. 643 : 32 C.L.J. 255 : 24 C.W.N. 1039, and need not be recapitulated at length for our present purpose. It is sufficient to state that proceedings under Section 145 of the Criminal Procedure Code were initiated by the District Magistrate of Malda on the ground that a dispute likely to cause a breach of the peace existed between the Mathurapur Zemindary Concern and the tenants, relating to the right to grow and collect lac on plum trees standing on lands comprised in the holdings of the tenants. The District Magistrate considered the case to be of such emergency that he proceeded to attach the disputed tree's with the lac thereon, pending his decision under Section 145.' At a later stage, by order of the District Magistrate, the lac was collected and stored in the godowns of the first party and a portion thereof was sold by auction. The tenants obtained Rules from this Court with a view to set aside the proceedings on the ground, amongst others, that the District Magistrate had no jurisdiction to take action under Section 145 or to make the orders he had passed. This Court stayed further proceedings pending the disposal of the Rule. But notwithstanding such order, the lac has been collected and sold in part, an action which has been attempted to be justified in the letter of the Magistrate, on the allegation that the lac might otherwise considerably deteriorate in value to the detriment of the rightful owner, who-ever he might turn out to be in the end. On the 2nd July 1920, Mr. Justice Chatterjea and Mr. Justice Cuming set aside the proceedings under Section 145 as initiated without jurisdiction and added that the question of disposal of the lac and the sale proceeds of the portion already sold would be dealt with later. The present Rule was then issued, on the 29th July, 1920, sailing upon the District Magistrate of Malda and the opposite party to show cause why the proceeds of sale of the lac as also the lac yet unsold and stored in the godown of the Mathurapur Zemindary Concern should not be made over to the tenants, or why Such other order should not be passed as might seem proper to the Court. As the Rule involves an important question of law touching the jurisdiction of this Court, it has been placed for disposal before a Special Bench constituted with the concurrence of the Fall Court.
2. The first point which requires consideration is, whether this Court has inherent power to give directions as to the disposal of property which was attached and has been dealt with by a Subordinate Court in the course of proceedings instituted without jurisdiction under Section 145 of the Criminal Procedure Code. We are of opinion that the question should be answered in the affirmative. It is now well-settled that a High Court is competent, in the exercise of the power of superintendence vested in it under Section 107 of-the Government of India Act, 1915, (which re-placed Section 15 of the Indian High Courts Act 1861), to set aside proceedings instituted without jurisdiction by a. Subordinate Court under Section 145 of the Criminal Procedure Code; such power of superintendence can be exercised notwithstanding Section 435(3) Criminal Procedure Code, which lays down that proceedings under Chapter XII (which comprises SECTIONs 145-148) are not proceedings within the meaning of that section. This view was affirmed in Hurbullulh Narain Singh v. Luchmeswar Prosad Singh 26 C. 188 : 3 C.W.N. 49 : 13 Ind. Dec. (N.S.) 725, Laldhari Singh v. Sukdeo Narain Singh 27 C. 892 at p. 899 : 4 C.W.N. 613 : 14 Ind. Dec. (N.S.) 583, Jagomohan Pal v. Ram Kumar Gope 28 C. 416, Kulada Kinkar Roy v. Danesh 33 C. 33 : 2 C.L.J. 271 : 10 C.W.N. 257 : 2 Cr.L.J. 670 (F.B.) and was subsequently recognised by a Full Bench in the cases of Sukh Lal Sheikh v. Tara Chand 83 C. 68 : 2 C.L.J. 241 : 9 C.W.N. 1046 : 2 Cr.L.J. 618, Khosh Mahomed Sirkar v. Nazir Mahomed 33 C. 352 : 2 C.L.J. 259 : 9 C.W.N. 1065 : 2 Cr.L.J. 637. Section 107 of the Government of India Act, which may thus be invoked to set aside proceedings instituted without jurisdiction, is expressed in perfectly general terms, and, prima facie, there is no reason why the High Court should not, when it sets aside the proceedings, proceed to give Such consequential directions as may be found necessary in the interests of justice in the circumstances of the particular case. That the Court is competent to make such consequential or incidental orders when it exercises its appellate or revisional jurisdiction, is clear from Section 423(1)(d) Section 439(1) and Section 520. In Such circumstances, we may legitimately hold that the High Court may make consequential or incidental orders in the exercise of its power of superintendence over Subordinate Courts, which may be invoked, if occasion should arise, to reach and remedy all forms of judicial high-handedness. Zelhraj Ram v. Debi Pershad 12 C.W.N. 678 : 7 Cr.L.J. 499. This conclusion harmonies with the view formulated in Pulin Behary Pas v. Emperor 16 Ind. Cas. 257 at p. 300 : 16 C.W.N. 1105 at p. 1136 : 13 Cr.L.J. 609 : 15 C.L.J. 517 that Criminal Courts, no less than Civil Courts, exist for the administration of justice, and Courts of both descriptions have inherent power to mould the procedure, subject to the (statutory provisions applicable to the matter in hand, to enable them to discharge their functions as Courts of Justice,' The same position was re-affirmed in the following terms in Budhu Lal v. Chattu Gope 39 Ind. Cas. 465 : 44 C. 816 : 25 C.L.J. 193 : 21 C.W.N. 269 : 18 Cr.L.J. 497 the Criminal Procedure Code does not contain a provision corresponding to Section 151 of the Civil Procedure Code; but that section does not lay down any new principle, it merely embodies a legislative recognition of the inherent power of the Court to make Such order as may be necessary for the ends of justice. This inherent power is in no sense restricted in application to civil cases; it is equally applicable to criminal matters. The power is not capriciously or arbitrarily exercised; it is exercised ex debito justifies, to do that real and substantial justice for the administration of which alone Courts exist; but the Court in the exercise, of such inherent power must be careful to see that its decision is based on sound general principles and is not in conflict with them or with the intentions of the Legislature as indicated in statutory provisions.' This was not a novel proposition nor a new departure, for the inherent power of the Court had been occasionally recognised in earlier cases. Thus, in Ram Chandra Mistry v. Nobin Mirdha 25 C. 630 : 2 C.W.N. 225 : 13 Ind. Dec. (N.S.) 414 when the Court was invited to apply, to an order made by a Criminal Court, the elementary principle enunoiated by the Judicial Committee in Rodger v. Comptoir, d' Escompte de Paris (1871) 3 P.C. 465 at pp. 474, 475 : 40 L.J.P.C. 1 : 24 L.T. 111 : 19 W.R. 449 : 7 Moo. P.C. (N.S.) 314 : 17 E.R. 120 that it is the duty of all (Courts to take care that the act of the Court does no injury to any of the suitors, Mr. Justice Hill observed that in a case which the Court considered to be a fit one in all respects for its application, the Court would not hesitate to enforce the principle referred to. The statement of this principle by Lord Cairns in the case before the Judicial Committee just mentioned is occurred in terms of great generality and may be usefully re-called in this connection.
3. One of the first and highest duties of all Courts, is to take one that the act of the Court does no injury to any of the suitors, and when the expression the act of the Court is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court.'
4. Again, in Ahmed Ali v. Kesnoo Khan 1 Ind. Cas. 202 : 202 : 36 C. 44 : 13 C.W.N. 77 : 9 Cr.L.J. 294, when Mr. Justice Brett was pressed with the argument that the High Court could not interfere with an order passed by a Magistrate under Section 522, of the Criminal Procedure Code, because there was no express provision in that behalf, the learned Judge referred to Ram Chandra Mistry v. Nobin Mirdha 25 C. 630 : 2 C.W.N. 225 : 13 Ind. Dec. (N.S.) 414 as showing that the Court had an 'inherent jurisdiction,' though it became, unnecessary for him to invoke the aid of the inherent power of the Court because, as pointed out in Manki v. Bhagwanti 27 A. 415 : A.W.N. (1905) 19 : 2 A.L.J. 64 : 2 C.L.J. 21, the provision contained in Section 423(1)(d), read with Section 439, was comprehensive enough to include the power required to direct cancellation of the order made under Section 522, Again, the decision in Lakshman Govind Nirgude, In re 26 B. 552 : 4 Bom. L.R. 276 contains a clear recognition of the doctrine of inherent power. It has been eontended, however, that cases may be found in the books which tend to show that the theory of inherent power of a Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court, has been sometimes, if not actually repudiated, at any rate, overlooked, and reference has been made to Basudeb Purma Gossain v. Naziruddin 14 C. 834 : 12 Ind. Jur. 152 : 7 Ind. Dec. (N.S.) 551, Queen-Empress v. Fateh Chand 24 C. 499 : 1 C.W.N. 435 : 12 Ind. Dec. (N.S.), Prayag Mahaton v. Gobind Mahaton 32 C. 602 : 9 C.W.N. 862 : 2 Cr.L.J. 552, Arju Mea v. Arman Mea 7 C.L.J. 369 : 7 Cr.L.J. 48 at p. 51, Surjya Kumar Upadhya v. Dinabandhu Pal 15 C.W.N. CCLIV (254) notes, Karimuddi Fakir v. Naimuddi Kaviraj 3 C.L.J. 673 : 3 Cr.L.J. 466, Tulshi Ram v. Abrar Ahmad 30 Ind. Cas. 1002 : 37 A. 654 : 13 A.L.J. 932 : 16 Cr.L.J. 714, Annapurnabai, In the matter of 1 B. 630 : 1 Ind. Dec. (N.S.) 418, Ratanlal Rangildas In re 17 B. 748 : 9 Ind. Dec. (N.S.) 491, Devidin Durgaprasad In re 22 B. 844 : 11 Ind. Dec. (N.S.) 1146, Kuppammal, In the matter of 29 M. 375 at pp. 376 : 377 : 4 Cr.L.J. 233, and Chenga Reddi v. Ramasamy Gounden 27 Ind. Cas. 152 : 16 Cr.L.J. 104 : 1 L.W. 1032 as typical illustrations. No useful purpose would be served by an analysis of the facts of each of these cases and of the opinions expressed thereon, though it may be a question whether all of them really ignore or overlook the doctrine of inherent power. It is sufficient to state that, in some instances the matter was not approached from this point of view, while, in others, even if the doctrine of inherent power were invoked, the result would not have been different; but none of the cases expressly repudiates the doctrine of inherent power, though several proceed on the assumption that a specific provision of the Criminal Procedure Code must be pointed out to justify an order made by a Subordinate Court or an order which the High Court is invited to pass. This narrow view of the powers and duties of a Court of Justice, whether Civil or Criminal, cannot now be maintained. The truth is, that, in respect of Civil Courts, the theory of inherent power, though enunciated by Sir Barnes Peacook, C.J., in 1868 in Hurro Chunder Roy v. Shoorodhonee Debia 9 W.R. 402, was lost sight of for many years, and was familiarised only after it had been re stated and re-affirmed in 1903 in Muhara Chand Bold v. Kamulanand Singh 33 C. 927 : 3 C.L.J. 67 and recognised thereafter in express terms in Section 151 of the Civil Procedure Code, 1908. In the case of Criminal Courts, the theory of inherent power has bad a still more uncertain career, but, as we have seen, it was welcomed without hesitation in 1898, found some recognition in the Criminal Procedure Code of that year, and was re affirmed in 1912. We feel no doubt whatever that the doctrine of inherent power, as enunciated in the cases of Pulin Behary Das v. Emperor 16 Ind. Cas. 257 at p. 300 : 16 C.W.N. 1105 at p. 1136 : 13 Cr.L.J. 609 : 15 C.L.J. 517 and re stated in Budhu Lal v. Chattu Gope 39 Ind. Cas. 465 : 44 C. 816 : 25 C.L.J. 193 : 21 C.W.N. 269 : 18 C.L.J. 497, is well-established on principle and cannot be successfully questioned.
5. The second point which requires examination is, what are the directions which should be given for the disposal by the lac and the sale proceeds of the portion already Bold, It is manifestly impossible to restore the physical condition of things as they existed when the proceedings under Section 145 were instituted; for the twigs cannot be re-attached to the trees nor can the lac be replaced on them. The tenants have contended that as restitution in integrant is impossible, the lac yet unsold should be sold and the entire sale-proceeds divided amongst them rateably, in proportion to the number of trees on the holding of cash tenant. This course cannot be adopted for an obvious reason. Such a distribution as that suggested must be made on the assumption that, apart from possible questions of title, all the lac when attached and removed was in the possession of the tenants. This, however, is strenuously controverted on behalf of the Zemindars and Adhyare, and the Court is not in a position to make an assumption in favour of either party, because there has been no enquiry, summary or otherwise, in the proceedings which have been cancelled as instituted without jurisdiction. It is equally plain that the lac and the money should not remain in the custody of the Zemindars and Adhyars who are the other party to the proceedings. In Such circumstances, the best course to adopt is to keep the property in the custody of the Court pending decision by a Civil Court on the question of title to the lac. cf. Chewga Reddi v. Ramasamy Gounden 27 Ind. Cas. 152 : 16 Cr.L.J. 104 : 1 L.W. 1032. Such a course was commended by Lord Macnaghten in Hood Barrs v. Heriot (1896) A.C. 174 at p. 186 : 65 L.J.Q.B. 252 : 74 L.T. 353 : 44 W.R. 481 : 60 J.P. 612 where he regretted that the Court of Appeal had not thought it proper to hold a fund in media pending appeal to the House of Lords on the question of title thereto; see also the judgment of Lord Watson in Peruvian Guano Co. v. Dreyfus (1892) A.C. 166 : 61 L.J. Ch. 749 : 66 L.T. 536 : 7 Asp. M.C. 225.
6. The result is that the Rule is made absolute. The lac. and the net sale-proceeds of the lac. already sold (after deduction of incidental charges) will forthwith be placed in the custody of the Subordinate Judge of Malda, who will take steps, as early as practicable, to have the lac sold. The entire sale-proceeds will constitute one fund which will remain in the custody of the Court of the Subordinate Judge The first party will be at liberty to institute a suit in the Court of the Subordinate Judge of Malda for declaration of their right to the lac and for accidental reliefs. If such a suit is instituted on or before the 1st December 1920, the fund will continue to be held by the Subordinate Judge to await the result of the suit. If, on the other hand, the suit is not instituted by the first party on or before the 1st December 1920, the Subordinate Judge will distribute the fund amongst the tenants on the basis of the record prepared by the Police Authorities as to the number of trees on the hiding of each tenant from which the lac was taken. The distribution will be made rateably, in proportion to the number of trees on each holding; but this will not affect the right of the tenants interest to have the question of apportionment amongst themselves decided by a Civil Court.
Ernest Fletcher, J.
7. I agree.
N.R. Chatterjea, J.
10. I agree.