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1982 DIGILAW 355 (RAJ)

Ghaseeta Singh v. M. D. Singh

1982-09-08

KANTA BHATNAGAR

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BHATNAGAR, J.—An application under section 37 (1) of the Rajasthan Co-operative Societies Act, 1965 hereinafter to be referred as the Act was filed in the Court of Munsif and Judicial Magistrate, First Class, Chirawa. The learned Magistrate passed an order under sub-section (3) of that section on February 16, 1982 and issued warrant for the seizure of the record concerning CFFRI, Bal Mandir Society, Pilani from the possession of the petitioner Ghaseeta Singh or wherever it might be. 2. Being aggrieved by that order, petitioner Ghaseeta Singh preferred a revision petition in the Court of Sessions Judge, Jhunjhunu. The learned Sessions Judge by the order dated September 4,1982 rejected the revision petition on the ground that revision petition against an order passed under section 37(3) of the Act does not lie. 3. It is in grievance to that order that the petitioner has invoked the inherent jurisdiction of this Court filing a petition under section 482 of the Code of Criminal Procedure (hereinafter to be referred as the Code). 4. Mr M. M. Ranjan, learned counsel for the petitioner put in appearance on behalf of non-petitioner No. I. M. D Singh at the admission stage. 5. At the commencement of the arguments Mr. Ranjan raised a preliminary objection that the order passed under section 37 (3) of the Act not being an order passed by the Magistrate in his capacity of a Judicial Magistrate the provisions of section 482 of the Code are not attracted. The learned counsel referred to certain decisions of this Court to substantiate his contention, which I would just discuss, that the Magistrate was acting as a persona designate by virtue of the powers vested in him under the Act and not as a Judicial Magistrate and therefore, the provisions of the Code are not applicable. 6. Mr. V.S. Dave, learned counsel for the petitioners meeting out this preliminary objection submitted that the concerned society being registered under the Rajasthan Societies Registration Act, 1958 and not under the Rajasthan Cooperative Societies Act 1965, the provisions of the Act were not attracted. The contention of Mr. Dave is that as the Magistrate has trespassed his jurisdiction this Court by exercising its inherent powers should interfere with the impugned order. 7. The contention of Mr. Dave is that as the Magistrate has trespassed his jurisdiction this Court by exercising its inherent powers should interfere with the impugned order. 7. This is evident that the application was filed under section 37 (1) of the Act and the order causing grievance was passed under section 37 (3) of the Act. The pertinent question is whether the Magistrate passing that order was acting as a Court under the Code or under the specific power vested in him by virtue of the Act. Another question emerging from the Arguments of Mr. Dave would be, whether this Court should look into the matter from the point of view that the Magistrate has wrongly entertained an application filed under s. 37(1) of the Act and for that reason the order passed under section 37(3) was illegal. 8. The point about the maintainability of a revision petition against an order passed by the Magistrate empowered under sec 37(1) of the Act came for consideration before this Court in the case of Shiv Charan Dass Vs. Hakikatullah Khan (S.B. Criminal Revision Petition No. 304 of 1968) decided on August 24, 1958. Wherein the learned Judge has held that an order passed by a Magistrate under sub-section (3) of section 37 of the Act is not amenable to the revisional jurisdiction of this Court under the Code. This finding was referred to in the case of Kashinath Joshi Vs. Satish Chandra (1). Their Lordships were in agreement with the observations of the single bench decisions referred to above and were pleased to discuss the scheme of Chapter IV of the Act. It was observed that Chapter IV of the Act deals with the Management of Cooperative Societies, and it is in course of the management of societies that the power has been given to the new Committee or Administrator or the Liquidator for applying to Magistrate, within whose jurisdiction the society functions, for securing the records and property of the society. Their Lordships were pleased to refer the Division Bench decision of this Court viz. Tara Chand Vs. Krishna Gopal (2) wherein it was held that the Magistrate and District Magistrate acting under sections 17 and 22 (3) of the Rajasthan Premises (Control of Rent Eviction) Act are not criminal courts and therefore, no revision lies under sections 435 and 439. Their Lordships were pleased to refer the Division Bench decision of this Court viz. Tara Chand Vs. Krishna Gopal (2) wherein it was held that the Magistrate and District Magistrate acting under sections 17 and 22 (3) of the Rajasthan Premises (Control of Rent Eviction) Act are not criminal courts and therefore, no revision lies under sections 435 and 439. In view of these observations, their Lordships deciding the case of Kasinath Joshi Vs. Satish Chandra (supra) were pleased to observe as under: "There is no doubt that the Magistrate, within whose jurisdiction the society functions, is appointed under the Criminal Procedure Code and constitutes a Criminal Court. However, power may be conferred on the presiding officer or such a criminal court by a special or local statute. If this power is of executive or administrative character, such officer cannot be said to be exercising such power in judicial capacity and, as a necessary corollary, orders passed by such officer will not be the orders of a criminal court but must be considered as orders passed by an officer in executive or in administrative capacity." 9. The matter involved in the aforesaid case of Kashi Nath Joshi vs. Satish Chandra (supra) was concerning the Contempt of a Court acting under section 37 of the Act. Their Lordships after discussing the implications of the expression Court Subordinate to High Court were pleased to hold that by no stretch of imagination can it be said that the proceedings before the City Magistrate, Jodhpur were of criminal or evil nature. 10. The question about the revisional jurisdiction in an action taken by a Magistrate under section 37 (3) of the Act again came up for consideration before this Court in the case of Mavli Co-operative Sahkari Samiti, Mavli Vs. Soram (3). His Lordship was pleased to observe that it is important to bear in mind that the Magistrate though appointed under the Code does not act as such Magistrate but a special power has been conferred upon him by a Special Act namely the Co-operative Societies Act to issue a warrant under section 37 (3) of the Act. Soram (3). His Lordship was pleased to observe that it is important to bear in mind that the Magistrate though appointed under the Code does not act as such Magistrate but a special power has been conferred upon him by a Special Act namely the Co-operative Societies Act to issue a warrant under section 37 (3) of the Act. His Lordship was further pleased to observe that this Special Act does not itself constitute the Magistrate a criminal court and that, while exercising powers under section 37 (3) of the Act, the Magistrate acts as a persona designate by virtue of the powers conferred under the Special Act and therefore, his order is not devisable under section 435 of the Code. 11. From the principles enunciated in the above referred cases, it is clear that the Magistrate referred to under section 37 acts under the scheme of Chapter IV and not as a Criminal Court and as such the action taken by him would fall within the ambit of the acts concerning the management of the society. 12. The argument of the learned counsel for the petitoner is that the Magistrate concerned has abused the process of the court by not applying mind as to whether the provisions of Section 37 of the Act were applicable to this matter or not and therefore, provisions of section 482 are attracted. He also referred to Sec. 483 of the Code dealing with the duty of the High Court to exercise continuous superintendence over the Court of Judicial Magistrate subordinate to it and submitted that this court should interfere in the order passed by the learned Magistrate. 13. I find myself unable to agree with this preposition. The reason is that the Magistrate was not acting as a criminal court in dealing with an application filed under section 37(1) of the Act, and therefore, the order passed under section 37(3) of the Act cannot be said to have been passed by a criminal Court. The supervisory duty envisaged by Section 483 refers to the courts of the Judicial Magistrate. The ground taken by the learned counsel for the petitioner that the Co-operative Societies Act was not applicable and for that reason the application under sec. The supervisory duty envisaged by Section 483 refers to the courts of the Judicial Magistrate. The ground taken by the learned counsel for the petitioner that the Co-operative Societies Act was not applicable and for that reason the application under sec. 37 (1) was not entertainable does not require consideration by this court for the reason that even the remedy against any misuse of the power vested in the Magistrate under Special Act will not amount to an act done by him in his capacity of a Judicial Magistrate so as to attract the provisions of the Code. The grievance even if any against the exercise of powers not vested under the Act cannot be got redressed by invoking the inherent powers of this Court under section 482 of the Code. 14. In view of the above discussions, the preliminary objection raised by the learned counsel for the non-petitioner No. I. M. D. Singh prevails and the application under sec. 482 of the Code of Criminal Procedure is dismissed.