Kedar Nath Goenka v. V. Prasad — 1965 DIGILAW 76 (PAT)

Judgment S.P.Singh, J. 1. Sri Kedar Nath Goenka, resident of Monghyr Town, has moved this Court in revision challenging the propriety and validity of the orders dated 1-2-65 and 8-2-65 passed by Sri V/s. Prasad, the then Subdivisional Magistrate, Sadar, Monghyr, in a Criminal Proceeding instituted against the petitioner, his son and his employee. The relevant facts are these: 2. On a Sunday, the 24th January, 1965, one Murlidhar Singh, Area Karamchari of Monghyr Sadar Anchal, filed a petition of complaint against Sri Kedar Nath Goenka and his son alleging that on 19-1-65 they got a Mohogny tree, standing in khas Mahal land bearing plot No. 151, cut by their men and removed the same. The Subdivisional Magistrate passed the following order at the foot of the petition :- - "O. C. Town P. S. Please institute a case under Sec.379/ 109 I. P, C. and investigate--V. Prasad. 24-1-65." On receipt of this petition along with the aforesaid order of the Sub Divisional Magistrate, the Officer-in-charge of the town Police Station made the following endorsement at the bottom of the complaint petition : "Received at 12/10 hours and registered case No. 29 dated 24-1-65 under Sec.379/109 I. P. C. and took up investigation. Sd. Pandey S. I. 24-1-65." On the same day on receipt of a requisition from the Officer-in-charge of town police station, the Sub Divisional Magistrate issued a non-bailable warrant of arrest against the petitioner and his son, returnable on the same day. Not only that, he went to the police station in his car, picked up a police officer from there and went to the Goenka Dharamshala and found there the logs of the tree loaded on a truck. He effected the seizure of the logs, caused the arrest of the Kapilshewar Singh, a servant of the petitioner and himself became a witness to the seizure. 3. On 25-1-65 the petitioner moved the District Magistrate of Monghyr for staying the proceeding, calling for the record and for withdrawal of the case. The District Magistrate, after hearing the petitioner, passed the following order on 25-1-65. "Petitioner heard. Call for the record from the S. D. O. Sadar by 2-2-65. Meanwhile, the order issuing warrant of arrest against the petitioner and further proceedings are stayed. Local police should be informed in case the warrants of arrest have already issued, to stay their execution till further orders". "Petitioner heard. Call for the record from the S. D. O. Sadar by 2-2-65. Meanwhile, the order issuing warrant of arrest against the petitioner and further proceedings are stayed. Local police should be informed in case the warrants of arrest have already issued, to stay their execution till further orders". This order of the District Magistrate, even though conveyed to the Sub Divisional Magistrate, was not complied with by the latter. On the contrary, on 1-2-65 he recorded the following order questioning the legality and propriety of the order passed by the District Magistrate- "1-2-65 Memo No. 360C/Bidhi, dated 25-1-65 of the District Magistrate received on 29-1-65 is put up before this court to-day. One petition filed on 29-1-65 on behalf of one Krishna Ballav Singh is also put up to-day. The District Magistrate vide his aforesaid memo has called for the record of Town P. S. case No. 27, D/- 24-1-65 and has stayed the execution of warrant of arrest against Kedar Nath Goenka and others and the further proceedings of this Court. From the names of the parties it appears that there is a clerical mistake regarding number of the Town P. S. case under reference, So, it is taken that it refers to Town P. S. Case No. 29 dated 24-1-65. The petitioner Krishna Ballav Singh has filed the aforesaid petition against this order of the District Magistrate. In nutshell he has stated that the orders of the District Magistrate in calling for the record of the court of justice and in staying execution of warrant of arrest and further proceedings pending before this court are inherently illegal and without jurisdiction. He has further stated that the District Magistrate has sent a copy of his order to the police direct and the police in good faith has stayed the execution of warrant of arrest. He has further contended that on the whole the above order and the said act of the District Magistrate in a way amounts to contempt of court and he has accordingly prayed not to send the record to the District Magistrate for the purpose or enquiry under Sec. 494 Cr. P. C. and not to stay the execution of warrant of arrest and further proceedings. He has further prayed to report the matter to the Hon ble High Court to take action for contempt of court. P. C. and not to stay the execution of warrant of arrest and further proceedings. He has further prayed to report the matter to the Hon ble High Court to take action for contempt of court. Heard the learned lawyer appearing for the petitioner. The petitioner claims to be aggrieved by the order of the District Magistrate as a member of the general public on the ground that the land over which the Mahogny tree alleged to have been cut by the accused persons was standing is gairmajarua-am land and the general public going to Oria Baba temple situated nearby this tree used to take rest under this tree. He claims to have seen the cutting of tree by accused persons on 19-1-65 and when he found on 24-1-65 that the wood etc. of the tree bad been removed, he had sent one application to this effect. I find this petition on record. As such his contention is quite tenable. Further, from the certified copy of the petition filed by accused Kedar Nath Goenka and others before the District Magistrate and his orders thereupon which is in question, and from their true construction, it is clear that the District Magistrate entertained the prayer of the accused Kedar Nath Goenka and others under Sec. 494 Cr. P. C. and for the purpose of enquiry thereunder he has called for the record and has stayed the execution of warrant of arrest and further proceedings of this court. In this connection the learned lawyer appearing for the petitioner placed before this court the Full Bench decision of the Hon ble Patna High Court in Criminal Misc. case No. 488 of 1948 reported in 50 Cr LJ 474; (AIR 1949 Pat 222) (FB), the King V/s. Parmanand and others accused. Their Lordships have held that the District Magistrate has no jurisdiction to call for the record of Criminal Proceeding and it is also wrong for the court concerned to part with its record for the purpose of enquiry under Sec. 494 Cr. P. C. It has been further held that no executive officer has any jurisdiction to issue a fiat staying criminal proceedings. I find that if the order of the District Magistrate is complied at this stage of the proceeding, it will mean stopping or hampering police investigation. P. C. It has been further held that no executive officer has any jurisdiction to issue a fiat staying criminal proceedings. I find that if the order of the District Magistrate is complied at this stage of the proceeding, it will mean stopping or hampering police investigation. Since under no circumstances the police investigation can be hampered or stopped this court in doing so will be doing a grave illegality for which there can be: no answer. Further, I find after the separation of the judiciary from the executive vide Govt. of Bihar letter No. II-41/301/50-A-11860 dated 20th December, 1950, of the Appointment Department vide Para 13 in a case like this which is triable by Judicial Magistrate., the Jurisdiction of the District Magistrate to call for the record is barred even under Sec. 435 Cr. P. C, Thus, this Court feels helpless to send the record and to stay the execution of warrant of arrest and further proceedings in the interest of justice. So far the prayer of the petitioner for issuing fresh warrant of arrest against the accused persons is concerned, it cannot be acceded to, because this court has not stayed the execution of warrant of arrest so far nor has cancelled it. The previous warrant of arrest issued on the police requisition is still valid according to law (under See. 75(2) Cr. P. C.) So this prayer is rejected. However, as prayed for, direct the officer-in-charge, Town P. S. to expedite the final form. So far the prayer for making report to the Hon ble High Court for contempt of court is concerned, I find that according to law on the subject, any party is free to move the Hon ble High Court direct. So if the petitioner so desires, he may move the Hon ble High Court direct. So far the question of making a report by this court is concerned, it will be decided later on. Send a copy of this order to District Magistrate, Monghyr. Sd. V. Prasnd, Sub-divisional Magistrate, Monghyr." 4. It appears that the petitioner moved the District Magistrate again on the 2nd February, 1965, for passing a fresh order of stay and also filed a petition under Sec. 435 read with Sec. 438 of the Code of Criminal Procedure. Send a copy of this order to District Magistrate, Monghyr. Sd. V. Prasnd, Sub-divisional Magistrate, Monghyr." 4. It appears that the petitioner moved the District Magistrate again on the 2nd February, 1965, for passing a fresh order of stay and also filed a petition under Sec. 435 read with Sec. 438 of the Code of Criminal Procedure. He filed another petition also for the withdrawal of the case from the file of the Sub Divisional Magistrate under Sec. 528(2) of the Code. On his first petition the learned District Magistrate passed the following orders : "2-2-65 Heard the learned lawyer on behalf of the petitioner. The petitioner seems to suffer from the belief that a fresh stay order may be necessary against the orders of the learned lower court. The question does not arise since the stay order issued by this Court has not been recalled. The petitioner wishes to move another petition in view of the reply of the learned lower court to the order of this court to send the record to this court, to which the petitioner has access for the first time only in this court. Let him do so tomorrow. Sd. S. S. Sharan. 2-2-1965. 3-2-65. Learned Lawyer on behalf of the petitioner have moved the petition again for calling for the record from the learned S. D. O. under Sec. 435 Cr. P. C. This Court has already called for the record from the learned S. D. O. by his order dated 25-1-65 after hearing the petitioner. The record was called for on this date under no other section than Sec. 435 Cr. P. C. There can, therefore, be no occasion to call for the record a second time from the learned Sub-Divisional Magistrate. The learned Sub-Divisional Magistrate has refused to send the record according to his order dated 1-2-65 of which a copy has been received in the main record. The learned Sub-Divisional Magistrate has, therefore, obstructed this court from exercising its lawful power of examining the record under Sec. 435 Cr. P. C. by refusing to part with the record. The proper remedy for the petitioners in this peculiar circumstances will be, if they so chose, to go to the Hon ble High Court to have their right under the law enforced. "Sd. S. S. Sharan, 3-2-65". 5. P. C. by refusing to part with the record. The proper remedy for the petitioners in this peculiar circumstances will be, if they so chose, to go to the Hon ble High Court to have their right under the law enforced. "Sd. S. S. Sharan, 3-2-65". 5. With regard to the second petition filed on behalf of the petitioner under Section 528(2) Cr. P. C. the learned District Magistrate by his order dated 5-2-65 stated that in view of the stay of the proceedings there were no reasonable grounds for the withdrawal of the case. On 8-2-65 the sub-divisional magistrate, however, recorded another order reiterating almost the same points as he had done on 1-2-65. Furthermore, he questioned the legality of the order of the District Magistrate staying the execution of the warrants of arrest and issued a fresh non-bailable warrant of arrest against the petitioner and his son and directed Sri S. K. Sarkar, Deputy Superintendent of Police, Sadar, Monghyr, to execute the warrant of arrest. It is after this order that the petitioner moved this Court on 11-2-65. 6. Mr. Awadhesh Nandan Sahai appearing for the petitioner has urged that the manner in which the learned Sub Divisional Magistrate conducted himself in this case and passed different orders in flagrant disregard of the District Magistrates order shows malice, vindictiveness and misuse of powers as a magistrate. According to the learned counsel, the District Magistrate passed the different orders calling for the record under Sec. 435 Cr. P. C. but the Sub Divisional Magistrate instead of complying with the aforesaid orders, went on criticising the District Magistrate on the ground that me latter had no jurisdiction to call for the record of a case pending in the court of the Sub Divisional Magistrate, little appreciating that the statutory powers of the District Magistrate, conferred under Sec. 435 Cr. P. C. have not been taken away by the Government instructions contained in Appointment Department letter No. II-HI-301/50 A-11860, dated the 20th December, 1950. Mr. Sahais contention is that the over-zeal exhibited in this case by the learned Sub-Divisional Magistrate clearly went to show that the extra-judicial steps that he took against the petitioner was not with a view to bring the offenders to book by vindicating the cause of justice, but being motivated by malice he wanted to humiliate and harass the petitioner Mr. Sahais contention is that the over-zeal exhibited in this case by the learned Sub-Divisional Magistrate clearly went to show that the extra-judicial steps that he took against the petitioner was not with a view to bring the offenders to book by vindicating the cause of justice, but being motivated by malice he wanted to humiliate and harass the petitioner Mr. Sahais argument is that the nature of the case was not such as to justify the steps taken by the learned Sub-Divisional Magistrate inasmuch as the petition of Sri Goenka filed before the District Magistrate and a copy of which was presented before the Sub-Divisional Magistrate clearly showed that the petitioner had set up a bona fide claim and the matter was worth Investigation. But, instead of waiting for the result of the investigation and sending the record to the District Magistrate, he made frantic efforts somehow to put the petitioner and his son in Jail. 7. Mr. Sri Narayan Sahay, appearing on behalf of the Sub-Divisional Magistrate has, however, tried to justify the conduct of the learned Sub-Divisional Magistrate on the ground that it was open to the Sub-Divisional Magistrate to pass an order for the issue of a non-bailable warrant of arrest in a case under Sec.379 read with Sec.109 of the Indian Penal Code and more so on the requisition of the police. His further argument is that the Sub-Divisional Magistrates action in not sending the records to the District Magistrate was perfectly valid because the District Magistrate by his order dated 25-1-65 did not indicate that he was acting under Sec. 435 Cr. P. C. On the other hand, he passed the aforesaid order on the basis of the petition of Sri Goenka which showed that the petitioner wanted the District Magistrate to withdraw the case under Sec. 494 Cr. P. C. In the Full Bench decision of this court in the case of AIR 1949 Pat 222 (FB), it has been held that Sec. 435 Cr. P. C. does not authorise a District Magistrate or a Sub-Divisional Magistrate to call for the record of a pending case for the purpose of submitting it to the Provincial Government or any one else. According to Mr. P. C. does not authorise a District Magistrate or a Sub-Divisional Magistrate to call for the record of a pending case for the purpose of submitting it to the Provincial Government or any one else. According to Mr. S. N. Sahai, Paragraph 12 of the Governments letter issued through the Appointment Department, dated the 20th December, 1950, in connection with the separation of executive and judiciary in the District of Gaya, Saran and Monghyr, clearly prohibits the District Magistrates from exercising their powers under Sec. 435 Cr. P. C. That being so, assuming that the statutory powers conferred on a District Magistrate under Section 435 Cr. P. C. have not been taken away by this letter, the fact remains that on account of the instructions contained in this letter, all the District Magistrates have refrained from exercising powers under Sec. 435 Cr. P. C. during all these years and as such it was quite improper for the District Magistrate of Monghyr to have exercised his powers under this section only in a particular case simply because an important citizen of the town was involved. Mr. S. N. Sahays contention is that whatever orders the Sub-Divisional Magistrate passed on the 24th or on the subsequent dates in relation to the proceeding in question were in a bona fide exercise of his powers conferred upon him under the Code of Criminal Procedure. Mr. Sahais further argument is that the proceeding in question was not a judicial proceeding till the 8th of February, 1965, on or before which various orders were passed by the learned Sub-divisional Magistrate and the District Magistrate inasmuch as the matter was pending for investigation by the police and from this aspect also it was not open to the District Magistrate to stay the proceeding in exercise of his powers under Sec. 435 Cr. P. C. 8. After hearing the arguments of the counsel of both parties and also the State lawyer representing the District Magistrate, I find that there is considerable force in the argument of Mr. Awadhesh Nandan Sahai. Leaving aside for the present the technicalities, it is fairly clear that the orders of the learned Sub Divisional Magistrate passed on 1-2-65 and 8-2-65 refusing to send the record of the case to the District Magistrate and issuing non-bailable warrants of arrest against the petitioner and his son cannot be supported. Awadhesh Nandan Sahai. Leaving aside for the present the technicalities, it is fairly clear that the orders of the learned Sub Divisional Magistrate passed on 1-2-65 and 8-2-65 refusing to send the record of the case to the District Magistrate and issuing non-bailable warrants of arrest against the petitioner and his son cannot be supported. The order dated 25-1-65 passed by the District Magistrate no doubt did not clearly mention that it was an order under Sec. 435 of the Code of Criminal Procedure, but, at the same time, it was not open to the Subdivisional Magistrate to enter into a critical examination of the orders of the District Magistrate and strut out excuses for not sending the records to him. It was not for the Sub Divisional Magistrate to conclude that the order was passed by the District Magistrate for the withdrawal of the case under Sec. 494 of the Criminal Procedure Code. The fact that the application of the petitioner was labelled as one under Section 494 Cr. P. C. did not justify the attitude adopted by the Sub Divisional Magistrate. A litigant may seek relief under a particular law or section of an Act, but the court is free to grant him relief to whatever extent he is entitled under the appropriate provision of any other Act on the same set of facts. The plain order of the District Magistrate was that the record should be sent to him and such an order is clearly covered by Sec. 435 Cr. P, C. The Subdivisional Magistrate was wrong in refusing to send the record by construing the order according to his own light. The fact that the District Magistrate has powers to call for the record in a proceeding before an inferior criminal court situate within the local limits of his jurisdiction and that he can suspend the execution of an order passed in any proceeding by such an inferior court cannot be doubted. I may refer in this connection to a Bench decision of the Allahabad High Court in the case of the Sessions Judge of Meerut V/s. F. S. Fanthome, AIR 1955 All 161 which clearly lays down that it is not for the superior courts to say under what law they have issued the directive. The subordinate courts should presume for the time being, unless a contrary appears, that the order is lawful. The subordinate courts should presume for the time being, unless a contrary appears, that the order is lawful. No subordinate court is entitled to demand his superior court the law under which the order has been passed before complying with it. They must find the law for themselves if they intend to question the order otherwise they should strictly comply with it both in law and in spirit. 9. At any rate, by his subsequent order made on 3-2-65, the District Magistrate clarified the position and stated that he called for the records under Section 435 Cr. P. C. Still the records were not sent. On the contrary in utter disregard of the District Magistrates order, the Subdivisional Magistrate issued fresh non-bailable warrant directing the Deputy Superintendent of Police to execute it. The further plea taken by the Subdivisional Magistrate in justification of his order was that in view of the operation in the district of Monghyr of the scheme of separation of judicial and executive functions, the District Magistrate had, by virtue of the instructions of the Government contained in Appointment Departments letter No. H-HI-301/50-A-11860, dated the 20th December, 1950, no power under Sec. 435 Cr. P. C., to interfere with the administration of justice by calling for the records. Here also, the Subdivisional Magistrate displayed lack of proper appreciation of the legal aspect. The matter had not yet reached the stage of hearing so much so that he had not taken even cognizance. If at that stage the Sub-Divisional Magistrate abandons the sense of justice and commits an irregularity which puts in jeopardy the liberty of a citizen, there is no reason why the District Magistrate should not intervene at this stage and try to undo the wrong by exercising his powers under Sec. 435 Cr. P. C. Furthermore, the Subdivisional Magistrate was wrong in thinking that the aforesaid Government instructions had the effect of depriving the District Magistrate of his statutory powers under Sec. 435 Cr. P. C. All his powers under the Code of Criminal Procedure are intact. Those powers are also exercised concurrently by another authority under the executive instruction. If, therefore, in any case the District Magistrate intervenes to rectify an order, it can not be regarded as illegal and a superior court cannot set it aside on the ground, of want of jurisdiction. Those powers are also exercised concurrently by another authority under the executive instruction. If, therefore, in any case the District Magistrate intervenes to rectify an order, it can not be regarded as illegal and a superior court cannot set it aside on the ground, of want of jurisdiction. In the case of Butchaiah Chowdary V/s. N. Venkata Subrahmanyam, AIR 1957 Andh Pra 247, it was held that the Government order styled as a memorandum of instruction issued for the guidance of the judicial and executive magistrates under the Madras scheme of separation of judiciary from the executive could not affect the ordinary powers of a District Magistrate conferred upon him under Sec.36 of the Code and specified in the third schedule. It was observed in that case that the State Government could not under any provision of the Code deprive a magistrate of his ordinary powers conferred upon him ex-officio by a Statute. While the Magistrate may be amenable to disciplinary action at the hands of the Government for disobedience of their instructions, as embodied in the Government order, their jurisdiction to exercise the ordinary powers vested in them under Sec.36 of the Code is always there and can only be lost by deprivation of their office. It is thus clear beyond doubt that it was not open to the Subdivisional Magistrate to challenge the legality or the propriety of the order passed by the District Magistrate calling for the records. The District Magistrate, if he disregarded the Government instruction, could be made answerable to the State Government, but it was none of the business of the Subdivisional Magistrate not to comply with the orders of the District Magistrate which, as has been shown above, was an order passed in accordance with law. 10. The fact that the order of the Sub-divisional Magistrate had been passed in a criminal proceeding cannot be doubted and as such it was within the jurisdiction of the District Magistrate, as a superior court, to call for the records of this case with a view to satisfying himself as to the correctness or regularity of the said proceeding, A proceeding as contemplated under Section 435 Cr. P. C., is wider than the expression "Judicial proceeding" vide the Full Bench decision of the Calcutta High Court in the case of Mahabir Singh V/s. Emperor, AIR 1944 Cal 17. P. C., is wider than the expression "Judicial proceeding" vide the Full Bench decision of the Calcutta High Court in the case of Mahabir Singh V/s. Emperor, AIR 1944 Cal 17. That being so, by no means the legality of the order of the District Magistrate can be challenged. It is immaterial whether the Subdivisional Magistrate had taken cognizance of the case or not. The fact remains that a proceeding was pending before him and it was open to the District Magistrate to call for the record of this proceeding for the purpose of examining as to its correctness and irregularity. He can also direct suspension of the execution of the order passed by the learned Subdivisional Magistrate, as provided under Sec. 435 Cr. P. C. Therefore, it is not possible to find any fault with the order of the District Magistrate in point of law. On the other hand, it is difficult to support the stand taken by the Subdivisional Magistrate as evidenced by his impugned orders. As rightly pointed out by the learned counsel for the petitioner, the trend of events shows that the Subdivisional Magistrate was very keen on the arrest of the petitioner and his son rather than to further investigation of the case. For considerations other than Judicial, he seems to have lost judicial balance and in a petty case of theft not only did he issue non-bailable warrant of arrest returnable on the same day, which was a Sunday, without first issuing summons for the appearance of the accused which by itself was quite improper, but also put the full force of his authority to ensure their arrest. In his zeal to see the accused brought under arrest, he flouted the orders of the District Magistrate which, as shown above, was according to him illegal. Such an attitude of the Presiding Officer of a court can by no means be justified. A court, which is entrusted with the discharge of judicial function, has to see that the liberty of a citizen is not lightly jeopardised. It is true that law is no respecter of persons and even-handed justice is to be meted out to every one irrespective of his position and status in life. A court, which is entrusted with the discharge of judicial function, has to see that the liberty of a citizen is not lightly jeopardised. It is true that law is no respecter of persons and even-handed justice is to be meted out to every one irrespective of his position and status in life. This dictum, the learned Subdivisional Magistrate, overlooked and had he cared for justice, he would have discovered that the non-bailable warrants of arrest should not have been issued in the very first instance. 11. During the course of the hearing an application on behalf of the Subdivisional Magistrate (Opposite Party No. 1) was filed to the effect that learned counsel for the petitioner should not be allowed to plead malice on the part of the Subdivisional Magistrate because no such plea had been taken in the revision application filed in this court. A rejoinder was filed on behalf of the petitioner that malice has to be inferred from the facts stated in the application and the circumstances of the case and it was not necessary to use specifically the word "malice". Learned counsel for the petitioner also pointed out in the course of his argument that the Sub-divisional Magistrate in his show cause petition filed hi this case has stated facts in justification of his action, namely, that the life of the Nazir was in danger and that the Block Development Officer, Sri C. M. Sahahnddin, had sent him a petition on 21-1-65 complaining against the petitioner and his son. But, these facts are merely an after-thought and cannot be gathered from any material on the record of the case and no indication of these facts was given in any of his orders. I have mentioned them because they were strenuously urged, but I do not think it proper to express any opinion on the question of malice as it is not germane to the main point involved. It will suffice to say that the orders of the Subdivisional Magistrate are not proper and are wrong in law. It follows, therefore, that they cannot be supported either in point of law or fact. Accordingly, I allow the application and set aside the impugned orders of the Sub-divisional Magistrate and direct that the investigation of the case will be conducted in accordance with law. 12. It follows, therefore, that they cannot be supported either in point of law or fact. Accordingly, I allow the application and set aside the impugned orders of the Sub-divisional Magistrate and direct that the investigation of the case will be conducted in accordance with law. 12. One Krishna Ballabh Singh, whose name appears in the impugned orders passed by the learned Subdivisional Magistrate, appeared in this case and filed a petition for being added as a party. The various orders passed in this case show that his prayer was left for consideration at the time of hearing. But, curiously enough, this application was not pressed on his behalf during the course of the hearing. Mr. B. C. Ghose appearing on his behalf simply urged that as this petitioner was not a party to this case, no comment should be made against him which might prejudice his case in the con tempt proceeding, in which he and the Subdivisional Magistrate are parties. The manner in which the petitioner appeared in the proceeding pending before the Subdivisional Magistrate was quite surprising, but in view of the con tempt proceeding, which is pending against him, I do not propose to examine the propriety or otherwise of his conduct in the proceeding in question.