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Narsingh Daval Vs. C.D. Dogra and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
AppellantNarsingh Daval
RespondentC.D. Dogra and anr.
Excerpt:
- .....magistrate dated 3-9-1969 vis-a-vis the property in dispute. a fair inference can be that the contempt proceedings evidenced by the notice dated 28th august. 1969. had not been quashed, although the fate of such contempt proceedings was sealed when the order dated 11th august. 1969. was quashed. however, since an interpretation was possible that the order of 28th august. 1969, was not quashed as there is no specific reference to it could not be said that the contempt proceedings had ipso facto also lapsed or had been quashed.4. the order dated 3rd september 1969. passed by the executive magistrate t. r. sharma. reads as follows:case called. the parties are present with counsel. the attachment order was issued by this court on 27-8-1969. from the material available on file i am.....
Judgment:
ORDER

M.H. Beg, J.

1. There is an application under Section 561-A, Cr. P.C. read with Article 227 of the Constitution as well as a proceeding under Section 3 of the Contempt of Courts Act before me. Originally, there was only one application under Section 561-A. Cr. P.C./227 of the Constitution based on the following assertions. The opposite party Charan Dass Dogra. a locally influential Derson wanted to dispossess the petitioner who was in possession of an orchard on the basis of a mortgage-cum-lease deed which was valid upto 31st December. 1972. The above-mentioned Charan Dass Dogra, opposite party No. 1. an Advocate of Kullu, persuaded the District Magistrate of Kullu to pass an ex party order dated 11th August. 1969 purporting to be under Section 145 Cr. P.C. to declare Charan Dass Dogra forthwith as a party in possession and prohibiting the petitioner from interference with his possession over the orchard. No District Magistrate who had even looked at the provisions of Section 145 Cr. P.C. could have possibly passed such an illegal order. Such an order was, however, passed. The case was then transferred to the file of an Executive Magistrate of Kullu. T. R. Sharma, opposite party No. 2, on 18th August. 1969. On 27th August, 1969. the Executive Magistrate concerned passed another extraordinary order without giving any notice to the petitioner. by this order he appointed the Tahsildar. Kullu, to proceed to the spot and to attach the orchard and to appoint any person he considered fit as a receiver. This receiver was to pick the fruit and dispose them of at the prevalent market rates. This order was passed on an application of Charan Dass Dogra. dated 27th August. 1969. alleging that the fruit in the orchard was liable to rapid decay unless it was speedily disposed of through somebody appointed by the court. If Charan Dass Dogra was already actually in possession and armed with the order of the District Magistrate dated 11th August 1969. prohibiting the petitioner from going near the orchard, it is difficult to understand why he needed further protection of the Magistrate. In any case he succeeded in obtaining another exparte order of the Magistrate affording him this further benign protection.

2. On 28th August. 1969. on an application filed by Charan Dass Dogra. the Executive Magistrate ordered the petitioner, his son, B. C. Negi, a Deputy Superintendent of Police. Hansrai. A. S. I. and Baburam. S. H. O to appear for contempt of Court for having violated the orders of the District Magistrate and to show cause why they should not be prosecuted under Section 188. I. P.C. read with Section 3 of the Contempt of Courts Act.

3. There is no doubt that these proceedings gave an inkling of the highhanded and arbitrary procedure which was, for some reason, being adopted against the petitioner. The petitioner, however, had his full say before Mr. Justice Rangarajan. sitting on the Himachal Bench of the Delhi High Court who quashed the order of the District Magistrate dated 11th August. 1969. as well as another rather extraordinary order of the Executive Magistrate, T. R. Sharma. opposite Party No. 2 dated 3rd September. 1969. The correct interpretation of the order dated 3rd October. 1969, passed by Mr. Justice Rangaraian is a matter of some dispute because the operative part of the learned Judge's order runs as follows:

But it is needless to rest the decision on this ground since the other reasons recorded by me both singly and cumulatively, would be sufficient for quashing all the orders passed by the District Magistrate on 11-8-1969 and culminating in the order of the Executive Magistrate dated 3-9-1969 vis-a-vis the property in dispute.

A fair inference can be that the contempt proceedings evidenced by the notice dated 28th August. 1969. had not been quashed, although the fate of such contempt proceedings was sealed when the order dated 11th August. 1969. was Quashed. However, since an interpretation was possible that the order of 28th August. 1969, was not quashed as there is no specific reference to it could not be said that the contempt proceedings had ipso facto also lapsed or had been quashed.

4. The order dated 3rd September 1969. passed by the Executive Magistrate T. R. Sharma. reads as follows:

Case called. The parties are present with counsel. The attachment order was issued by this Court on 27-8-1969. From the material available on file I am satisfied that there is apprehension of breach of the peace concerning land Khasra No. 1336 measuring 9-5-0 bighas situated in Phati Bashisht Kothi Jagatsukh. I. therefore, call upon the parties to put in written statement and adduce evidence in support of the respective claims. A copy of this order be displayed on the subject of dispute and a copy supplied to the respondents. To come up on 19-9-1969. At this stage the respondent Narsingh Daval Gir put up an affidavit enclosed by a telegram from his counsel from Simla stating therein that say has been granted by the Hon'ble. High Court Delhi at Simla in these proceedings. To wait for the Court orders upto 19-9-1969. Announced.

5. The above-mentioned order is also mentioned by Mr. Justice Rangara-ian who observed:

I do not wish to say anything about whether the Magistrate had actually notice of the stat order passed by this Court or not though it seems to me that it is passing strange after this Court passed the stay order on 2-9-1969 the Executive Magistrate should, on 3-9-1969. have suddenly persuaded himself to believe that a preliminary order had not been passed in this case and that he should pass such an order.

After adverting to the extraordinary course of the proceedings under Section 145. Cr. P.C. the learned Judge of the Himachal Bench of the Delhi High Court had quashed the order of 3rd September. 1969. also.

5-A. The Executive Magistrate concerned, however, seems to have been left with the contempt proceedings still hanging fire. The question of the disposal of the price of apples, said to have been sold by the receiver for a sum of Rest. 1828.72 was also before the Magistrate, although, according to the petitioner the price was Rest. 10. 000/- as the quantity was much more than the receiver alleged. The petitioner had applied on 18th October, 1969, that the sum of Rest. 1828.72 should be handed over to him. The Executive Magistrate had. therefore, to pass some orders on the two matters pending before him. Even if the contempt matter was only to be ended formally with an order showing that it could not precede further, the Executive Magistrate had to pass some order about it. In any case, the Executive Magistrate had to pass an order on the application of the petitioner to hand over the price of the apples to him and not to Charan Dash Dogra.

6. The order passed by the Magistrate on 29-9-1970 on the application to return the money was in the following terms:--

The parties are present (only Narsingh Devil's son). In this behalf interpleader's suit be instituted in the Court of sub-Judge under Section 88, C. P.C. for deciding the issue before 12-8-1970. The D. M. may be requested to appoint a Government Advocate to file a suit in the competent Court. Announced.

T.R. Sharma.'

This order only has been passed under Section 145. Sub-section (8) Cr. P.C. It did not dispose of the rights of the parties, but left them to get the civil right adjudicated upon by a Court of competent jurisdiction. If, as the petitioner alleges, the actual quantity and Price of the apples were fraudulently shown to be much less than these actually were, he could institute a suit for this against the receiver or any other person who may be a party to such an alleged nefarious transaction. So far as the price of the crop is concerned. Section 145 (8). Cr. P.C. seems to be clear enough to cover it. It says:

145 (8) If the Magistrate is of opinion that any crop or other produce of the property, the subject of dispute in a proceeding under this section pending before him, is subject to speedy and natural decay. he may make an order for the proper custody or sale of such property, and upon the completion of the inquiry shall make such order for the disposal of such property, or the sale-proceeds thereof, as he thinks fit.

7. Thus. Section 145 (8). Cr. P.C. enables the Magistrate to pass an order regarding the sale proceeds also. If the Magistrate could not decide to whom the money was to be paid, the only course open to him was to direct the parties to get their rights adjudicated upon by the Civil Court. This order, therefore, cannot be quashed audit apart from the preliminary objection that it was a revisable order for which the proper remedy was not either under Section 561-A. Cr. P.C. or Article 227 of the Constitution. The preliminary objection must also be held to be a perfectly good one so far as this order is concerned.

8. The next order sought to be quashed is another unusual order shown to have been passed by the Executive Magistrate. T. R. Sharma. on l'8th October. 1969. This is an order showing that the petitioner had slipped out of the Court room without the permission of the Court while the learned Magistrate was sitting on 18-10-1969 'in a state of indicial proceeding in a contempt of Court proceeding'. What the learned Magistrate seems to have meant was that he was holdings his Court and the petitioner, who was an accused, ought not to have left the Court without his permission. It appears that when the petitioner re-entered the Court room after a short while with other persons the Magistrate asked him why he had left the Court. The Magistrate had found that the manner of the petitioner, in savings that the Magistrate could mark him absent, was contemptuous. When the Magistrate pressed him further the petitioner had said that the Magistrate had permitted him to go. but, as the Magistrate insisted that no such permission was granted by him. the petitioner again told the Magistrate to mark him absent. The Magistrate, thereupon took some evidence on the question whether the petitioner had been permitted to go. This evidence as noticed in the order of the Magistrate himself, was conflicting. Nevertheless the Magistrate, on the basis of his own knowledge, found that he had not given the permission and convicted the petitioner of contempt of Court, but he let him off with a warning as the petitioner was said to have expressed regret.

9. The above-mentioned order dated 18th October, 1969. was also re-visible. Moreover, it is not possible to reproduce upon the record of the case what the petitioner had done and what was it that he indicated to the Magistrate by his tone and manner. This also was not a matter of which notice could be taken under Section 661-A. Cr. P.C. or under Article 227 of the Constitution. The preliminary objection that this Court should refrain from going into such cases under these provisions is upheld.

10. So far as the contempt proceedings against the Magistrate are concerned they arise out of allegations of alleged misrecording of the correct state of affairs in the proceedings of the Court. If this could be established. I would be disposed to take a very serious view of such a matter. The alleged misrecording. however relates to 18th October. 1969 The contempt proceedings were separated from the other proceedings as late as 24th March, 1971, under the orders of this Court after this Court had pointed out to the learned Counsel for the petitioner that this was a separate matter. The Magistrate's order shows that he himself recorded the version of the witnesses who had stated that permission had been granted to the petitioner to so. There could be a misunderstanding on such a point. Moreover, the notice sent to the Magistrate was in respect of some alleged disobedience of an order of this Court. The notice was also misleading. I. therefore, do not consider this to be a fit case for further inquiry into the alleged contempt of his own Court by the Magistrate concerned.

11. The result is that these applications are hereby dismissed. In the circumstances of the case. I make no order as to costs.


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