Kaluram S/o Gopal v. Madhya Bharat State — 1950 DIGILAW 2 (MP)

ORDER : 1. This is an application in revision arising out of proceedings under S. 514, Indian Criminal P. C. as adapted in Madhya Bharat. The applicants had executed a bond with sureties for the production of some bullocks in a criminal case in the Tappa Court of Bhorasa. The applicants made a default in producing the cattle on 20-11-1948, the date fixed by the Court. The Tappa Court, after necessary enquiry, held on 9-12-1948 that the bond had been forfeited and the nazir of the Court to realise the penalty of the bond. Thereupon the applicants appealed to the Court of First Class Magistrate and District Sub-Judge, Bhelsa, against the order dated 9-12-48 of the Tappa Court. The First Class Magistrate held on 20-1-49 that an order under S. 514 of the Code was appealable under S. 515 to the District Magistrate only. He, therefore, returned the memorandum of appeal to the applicants for presentation to the proper Court. When the appeal was put in the Court of Suba and District Magistrate of Bhelsa, the District Magistrate after making a reference to Notfn. No. 8 of 19-1-1949 issued from the office of the Chief Secretary and published in the Gazette of 22-1-1949, directed the applicants to file the appeal in the proper Court. Subsequently on 27-1-1949 the applicants again appealed to the Court of First Class Magistrate Bhelsa. In this appeal the First Class Magistrate adhered to the view expressed by him on 20-1-1949, and on 4-3-1949 dismissed the appeal. The applicants then filed an appeal against the order dated 4-3-1949 in the Court of the Sessions Judge Bhelsa. The learned Sessions Judge held the second appeal to be incompetent and dismissed it. He declined to exercise his revisional powers and make a report to the High Court. 2. The petitioners have now come up in revision to this Court. Counsel for the applicants does not dispute the correctness of the orders of the Sessions Judge and the First Class Magistrate. He is dissatisfied with the order of the District Magistrate. He contends that the power given to the District Magistrate under S. 515 of the Code to hear appeals against orders passed under S. 514 by any Magistrate cannot be cancelled by the Government and that as a matter of fact Notfn. He is dissatisfied with the order of the District Magistrate. He contends that the power given to the District Magistrate under S. 515 of the Code to hear appeals against orders passed under S. 514 by any Magistrate cannot be cancelled by the Government and that as a matter of fact Notfn. No. 8 of 19-1-1949 does not purport to divest the District Magistrate of the powers given to him under S. 36 of the Code. 3. The Government Advocate, in the first instance, contends that the applicants filed no petition for revising the order of the District Magistrate, Bhelsa, and as in this application they do not challenge the correctness of the orders of the Sessions Judge and the First Class Magistrate the order of the District Magistrate cannot be interfered with in this revision petition. He further argues that S. 41 of the Code empowers the Government to withdraw all or any of the powers conferred under the Code on any person and that according to Notfn. No. 8 of 19-1-1949, which is a valid notification, the District Magistrate had no power to entertain the appeal presented by the applicant. 4. This application raises a simple but an important point for consideration. It is common ground that as the bond was forfeited after the Criminal Procedure (Adaptation) Ordinance No. XXXI [31] of 1948 (Samvat 2005) came into force on 20-11-1948, the procedure applicable in this case of forfeiture of bond was the one laid down in S. 614, Indian Criminal P. C. of 1898 in Madhya Bharat, the schedule to the Adaptation Ordinance No. 31 of 1948 did dot make any modifications in Ss. 36, 37, 38, 39, 40, 41, 514 and 515 of the Code. Section 36 lays down that: "All District Magistrates, Sub-Divisional Magistrates and Magistrates of the First, Second and Third Classes, have the powers hereinafter respectively conferred upon them and specified in the third schedule. Such powers are called their 'ordinary powers." The ordinary powers of a District Magistrate specified in Sch. 3 include the power to hear appeals from or revise orders passed under S. 514 of the Code. Section 515 also provides that: "All orders passed under S. 514 by any Magistrate other than a District Megistrate, shall be appealable to the District Magistrate, or, if not be appealed, may be revised by him." The Notfn. 3 include the power to hear appeals from or revise orders passed under S. 514 of the Code. Section 515 also provides that: "All orders passed under S. 514 by any Magistrate other than a District Megistrate, shall be appealable to the District Magistrate, or, if not be appealed, may be revised by him." The Notfn. No. 8 of 19-1-1949 was in the following terms: "It is notified for general information that even though the Criminal Procedure Code of India has been adapted for Madhya Bharat, it is the intention of Government that the separation of the Executive from the Judiciary should be firmly established and scrupulously observed. Government are, therefore, pleased to direct that the Subas, who have been appointed as District Magistrates under S. 10, Criminal P. C., and the Naib Subas in charge of Sub-Divisions, who have been appointed as Sub-Divisional Magistrates under S. 13, shall exercise only the powers conferred upon them by Chaps. 8, 9 and 11, Criminal P. C." 5. Now it is plain from Rs. 36 and 515 that an appeal would lie to the District Magistrate from an order passed under S. 514 by any Magistrate other than a District Magistrate, unless there is some provision in the Code or the Adaptation Ordinance empowering the Government to deprive the District Magistrate of the statutory ordinary powers given to him by S. 36 and other sections of the Code and unless the Government has in valid exercise of such a power abrogated the power of the District Magistrate to hear an appeal under S. 515 of the Code. There is no such provision' either in the Code 0r in ordinance XXXI [31] of 1948. The learned Government Advocate has relied on S. 41 of the code and argued that this section permits the Government to cancel all or any of the powers of a District Magistrate and that the notification of 19-1-1948 was issued by the Government in exercise of the powers vested in them under S. 41. This contention is, in my opinion, groundless. Section 41 as adapted runs as follows: "(1) The Madhya Bharat Government may withdraw all or any of the powers conferred under this Code on any person by it or by any officer subordinate to it. This contention is, in my opinion, groundless. Section 41 as adapted runs as follows: "(1) The Madhya Bharat Government may withdraw all or any of the powers conferred under this Code on any person by it or by any officer subordinate to it. (2) Any powers conferred by the District Magistrate may be withdrawn by the District Magistrate." This section, on the face of it, refers to the withdrawal of these powers which are conferable under the Code by the Government or by any officer subordinate to the Government on any person. It does not relate to the cancellation or variation of those ordinary powers which the Code itself vests in each class of Magistrates. In the expression "conferred under this Code on any person by it" which occurs in S. 41, the words "by it" mean "by the Madhya Bharat Government." To take them to mean "by the Code" as the learned Government Advocate contends, is to make the whole expression meaningless. The powers conferable by the Government or by any officer subordinate to the Government are those which are mentioned in Ss. 37 and 38 of the Code. Under these sections the Government or the District Magistrate can invest any Sub-Divisional Magistrate or any Magistrate of the first, second or third class with any powers specified in the fourth schedule. The powers conferred on a Magistrate under S. 37 are referred to in the Code as additional powers in contrast to ordinary powers which the Code itself vests in him under S. 36. It is the divestiture of the powers with which a Magistrate may be invested by the Government or the District Magistrate that S. 41 deals with. The powers given to a Magistrate by the Code itself under S. 36 cannot be taken away by the use of S. 41. 6. The learned Government Advocate has frankly conceded that he could find no other provision in the Code or in the Adaptation Ordinance empowering the Government to abrogate the ordinary powers of a District Magistrate. The notification of 19-1-1948 does not make a reference to the powers conferred on the Government under any section of the Code or the Ordinance, in exercise of which the Government issued the notification. The notification of 19-1-1948 does not make a reference to the powers conferred on the Government under any section of the Code or the Ordinance, in exercise of which the Government issued the notification. It is significant that the notification itself does not speak of the abrogation of the ordinary powers of a District Magistrate; it only directs him to exercise only those powers which are vested in him under chaps. 8, 9 and 11, Criminal P. C. In my view, neither the Code nor the ordinance No. 31 of 1948 authorises the Government to take away powers vested in a District Magistrate by the Code and the notification in question in so far as it purports to prohibit the District Magistrate from exercising the ordinary powers is of no legal validity. The notification is no more than an executive directive of moral precept without any legal sanction. 7. It is not disputed by the learned Government Advocate that on 20-1-1949 and 4-3-1949 the District Sub-Judge, Bhelsa, was only a First Class Magistrate and not an Additional District Magistrate, having all the powers of a District Magistrate. But he suggests that as with effect from 1-4-1949 the First Class Magistrate, Bhelsa, has been appointed by the Government under S. 10 (2) of the Code as an Additional District Magistrate having, with the exception of the powers under chaps. 8, 9 and 11, all other powers of a District Magistrate, an appeal against an order passed under S. 514 can now be heard only by an Additional District Magistrate and not by a District Magistrate. I have been referred to the Notfn. No. 223 of the Law Department published in the Gazette of 12-3.1949 at p. 326, which says: 8. This notification does not in any way help the learned Government Advocate. So far as the question of abrogation and restriction of the powers vested in a District Magistrate by the Code is concerned, the criticism made above with regard to the previous notification of 19-1-1949 is equally applicable to the notification issued on 12-3-1949. Nor can the mere fact that Government has appointed a First Class Magistrate to be an Additional District Magistrate having all the powers of a District Magistrate, abrogate the powers which the Code itself vests in a District Magistrate. Nor can the mere fact that Government has appointed a First Class Magistrate to be an Additional District Magistrate having all the powers of a District Magistrate, abrogate the powers which the Code itself vests in a District Magistrate. Further, it is clear from the wording of S. 515 that the term "District Magistrate" does not include an Additional District Magistrate. This section refers to appeals from and revision of orders passed by any Magistrate other than a District Magistrate. The words "Magistrate other than a District Magistrate" are significant. An Additional District Magistrate though he may have all the powers of District Magistrate, is a "Magistrate other than a District Magistrate" for the Criminal Procedure Code contemplates only one person as the District Magistrate. If, therefore, the expression "Magistrate other than a District Magistrate" in S. 615 covers an Additional District Magistrate and an order passed by him under S. 514 is appealable, then clearly the words "District Magistrate" in the expression "shall be appealable to the District Magistrate" cannot include an Additional District Magistrate so as to empower an Additional District Magistrate to hear an appeal from his own order. It is argued that the Additional District Magistrate has con. current jurisdiction with the District Magistrate and that the above construction of S. 515 leads to the anomalous result of one Court sitting in appeal over a Court of concurrent jurisdiction. The short answer to this objection is that appellate powers depend on the words of the statute and if the words of the statute are in themselves precise and unambiguous they must be held to have their natural and ordinary sense. To my mind, any other construction of S. 515 would make the words "other than" redundant. In this connection a reference may be made to Rex v. West Riding, (1841) 1. Q. B. 325 at p. 329 : (113 E. R. 1156) where it was observed that where an Act plainly gives an appeal from one quarter sessions to another then such a provision though extraordinary could not be eliminated by adopting a construction of the statute which would make any part of the language of the statute unnecessary and ineffective. The line of reasoning adopted by me is also supported by the decision of Calcutta High Court in Mahender Bhumij v. Emperor, A. i. R. (8) 1921 Cal. 347 : (48 Cal. 874). The line of reasoning adopted by me is also supported by the decision of Calcutta High Court in Mahender Bhumij v. Emperor, A. i. R. (8) 1921 Cal. 347 : (48 Cal. 874). In my opinion, the term "District Magistrate" in S. 515 does not include an Additional District Magistrate and an appeal under that section oan be heard only by a District Magistrate. It is not necessary for me to decide the question whether with reference to other section of the Code the term "the District Magistrate" can be held to include an Additional District Magistrate and I express no opinion on it. 9. As to the objection of the learned Government Advocate that in this petition the order of the District Magistrate cannot be disturbed, it would suffice to say that the revisional jurisdiction of this Court is wide enough to permit interference even in this revision petition with the conclusion of the District Magistrate. 10. For the above reasons, in my judgment the Notfn. No. 8 of 19-1-1949 and the subsequent notification of 12-3-1949 in so far as they purport to take away and restrict the powers which the Code of Criminal Procedure itself rests in a District Magistrate, are ultra vires and invalid. I am also of the opinion that under the Code there oan be only one person who can be the District Magistrate and though an Additional District Magistrate may have all his powers, he is "a Magistrate other than a District Magistrate" within the meaning of S. 515 and consequently an appeal under S. 515 of the Code lies to the District Magistrate. The District Magistrate Bhelsa was, therefore, mistaken in saying that he was not empowered to hear the appeal presented to him by the petitioners. Accordingly, I accept this revision petition and direct the District Magistrate, Bhelsa, to hear the petitioner's appeal against the order of 9-12-1948 of the Tappa Court.