Research › Browse › Judgment

Patna High Court · body

1987 DIGILAW 364 (PAT)

Chandradeo Singh v. State Of Bihar

1987-12-15

S.H.S.ABIDI

body1987
Judgment S.H.S.ABIDI, J. 1. Petitioners Chandradeo Singh and eleven others have filed this application under Article 226 of the Constitution of India for quashing the order dated 26-9-1978 of the Civil Court as contained in Annexure 1 passed under Section 146(1) of the Old Code of Criminal Procedure (in short, the Code) and also the order of the learned Executive Magistrate dated 18-1-1979 as contained in Annexure 2. 2. It appears that on 26-7-1973 a proceeding under Section 144 of the Old Code was started by the learned Sub-Divisional Magistrate Sadar, Daltonganj, in which respondents 5 and 6, Paramdeo Singh and Shailesh Kumar Singh were the first party while the petitioners 1 to 11 were the second party. Later on this proceeding was converted into a proceeding under Section 145 of the Code by order dated 28-9-1973. In this proceeding on the application of the first party, respondents 7, 8 and 9 namely Ishwar Dayal Singh, Chandrabhan Singh and Surajbhan Singh were added as the second party. 3. The learned Executive Magistrate by order dated 1-3-1974 made a reference under Section 146(1) of the Old Code to the learned Munsif, Palamu, for declaration of possession of the lands in respect of Khata Nos. 9 and 51 of village Darus, Khata No. 32 of village Sonbarsa, Khata Nos. 8 and 40 of village Kathsundha Kalan and Khata No. 3 of village Kathaundha Khurd. During the pendency of the reference the new Code of Criminal Procedure, 1973, came into operation on 1-4-1974 and because of Section 484 of the new Code the proceeding under Section 145 of the Code continued. In the meantime the learned Munsif on the reference by the learned Executive Magistrate passed an order dated 26-9-1978. This order of the learned Munsif was challenged by the petitioners-second party in Criminal Revision No. 30 of 1976 before the learned Sessions Judge, who by his order dated 24-2-1977 dismissed the same. Thereafter the learned Executive Magistrate passed an order dated 18-1-1979 in the proceeding under Section 145, Cr. P. C Now both, the order of the learned Munsif and the order of the learned Executive Magistrate dated 26-9-1978 and 18-1-1979 respectively are under challenge in this application. 4. The case of the first party was in respect of the possession of the lands of the aforesaid Khatas. P. C Now both, the order of the learned Munsif and the order of the learned Executive Magistrate dated 26-9-1978 and 18-1-1979 respectively are under challenge in this application. 4. The case of the first party was in respect of the possession of the lands of the aforesaid Khatas. It is said that originally the lands in dispute belonged to cne Ramjas Singh of village Darus who died while remaining the possession. He had sold the entire lands by two registered sale deeds dated 21-5-1957 and 3-7-1958 in favour of his wife late Silwanti Devi daughter of Rajbans Singh and she had given the price from her own money which she had brought from her Naihar. Her husband wanted to sell these lands on account of several religious functions, for feeding of Brahmans in Shradh etc. and also he was in need of money. And after this sale the name of his wife was mutated over the plots in dispute and she came in possession of the land. She used to pay rent and get receipts thereof. She remained in possession of the lands till her death. 5. Silwanti Devi in order to fulfil the wishes of her husband, as they were issueless, adopted first party No. 2 (Shailesh Kumar Singh) as her husbands son and so after her death Shailesh Kumar Singh (adopted son) inherited her movable and immovable properties. She (Silwanti Devi) died on 10-3-1973 and as her adopted son was minor, first party No. 1, Paramdeo Singh, used to help him. It is said that Brij Bhushan Singh and others in order to create trouble over the rights of the adopted son set up the own sister of Ramjas Singh who denied the sale deed and alleged that no title or possession passed on to Silwanti Devi as the transfer was without payment of any consideration. 6. On these facts claims and counter claims were there. First party supported the adoption and the sale deed while the other party supported the claim of Rajmati Devi. For these reasons there was a dispute between the parties. 7. It has been urged on behalf of the petitioners that the Executive Magistrate who has tried the case could not pass the order dated 1-3-1976 for reference as well as the subsequent order dated 18-1-1979 as the said Magistrate was not a Magistrate of first class. For these reasons there was a dispute between the parties. 7. It has been urged on behalf of the petitioners that the Executive Magistrate who has tried the case could not pass the order dated 1-3-1976 for reference as well as the subsequent order dated 18-1-1979 as the said Magistrate was not a Magistrate of first class. It was also urged that the affidavits that were relied on were not sworn before the Magistrate who was in seisin of the case and so inadmissible evidence has been considered. 8. As to this contention the learned counsel for the petitioners referred to Section 484 (2) (a) (b) of the new Code, 1973 which provided : "(a) if, immediately before the date on which this Code comes into force, there is any appeal, application, trial, inquiry or investigation pending then such appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be, in accordance with the provisions of the Code of Criminal Procedure, 1898 (5 of 1898), as in force immediately before such commencement (hereinafter referred to as the old Code), as if this Code had not come into force : Provided that every inquiry under Chapter XVIII of the old Code, which is pending at the commencement of this Code, shall be dealt with and disposed of in accordance with the provisions of this Code ; (b) all notifications published, proclamations issued powers conferred, forms prescribed, local jurisdictions defined, sentence passed and orders, rules and appointments, not being appointments as Special Magistrates, made under the old Code and which are in force immediately before the commencement of this Code shall be deemed, respectively, to have been published, issued conferred, prescribed, defined, passed or made under the corresponding provisions of this Code." 9. According to the learned counsel for the petitioners though the proceeding continued, but the appointment of the Executive Magistrate who has tried the case was not notified earlier and so he could not try the same. Section 36 of the old Code (which has been omitted in the new Code) provided that all "District Magistrates, Sub-Divisional Magistrates and Magistrates of the first, second and third classes have the powers and in the third Schedule the powers of the Magistrates have been specified. First class Magistrate has got the powers to try the cases under Sections 145, 146 and 147, Cr. First class Magistrate has got the powers to try the cases under Sections 145, 146 and 147, Cr. P. C. According to the learned counsel as the Sections 36 has been omitted in the new Code so the Magistrates of first, second and third classes are no more in existence, though the District Magistrates and the Sub-Divisional Magistrates have been retained in Sections 6 and 12 of the new Code. About the classification of the Magistrates, Sections 12, 14 and 20 and its sub-sections of the new Code deals with the Magistrates and Section 32 of the same deals with the conferring of powers upon them. So from all this it appears that after the deletion of Section 36 of the old Code in the new Code, the Magistrates of first, second and third classes are no more in existence. Only the Sessions Judge, Judicial Magistrate first class, Judicial Magistrate second class and Executive Magistrates have been retained and there is no Executive Magistrate of first class. Any power exercised by the Magistrate of first class has not been vested in the Executive Magistrate unless conferment of power is there. Thus it appears that the power of the Magistrate of first class could be exercised even by the Executive Magistrate if there was conferment of power. 10. In the saving clause of Section 484 of the new Code the old proceedings which are pending for the purposes of the case under the old Code have been alive as if the new Code has not come into force for that. So the operation of the new clause in the new Code about the Executive Magistrates will not apply and the proceeding will continue to be governed by the old Code and the Magistrate of first class will continue to exercise the same power as they had been exercising. 11. In the counter-affidavit that has been filed by the respondent No. 5, a notification dated 31-10-1973 under the old Code has been filed as Annexure-A and it shows that Kameshwar Prasad Singh, Sub-Deputy Collector, Palamu, has been vested with the powers of the first class Magistrate. According to the learned counsel for the respondent this notification was in existence on and from 31-10-1973. The learned Magistrate was the Magistrate of first class and so he continued to exercise the powers of the first class Magistrate. According to the learned counsel for the respondent this notification was in existence on and from 31-10-1973. The learned Magistrate was the Magistrate of first class and so he continued to exercise the powers of the first class Magistrate. In view of the nrovisions contained in Section 484(2)(b) of the new Code as the notification was in existence so it could be continued as mentioned above. 12. In the Full Bench decision of this Court in the case of Radha Devi V/s. Mani Pd. Singh and another, 1978 BBCJ 626 , it was observed : "Clause (a) to Section 484(2) clearly provides that any appeal, application, trial, inquiry or investigation shall be disposed of, continued, held or made, as the case may be in accordance with the provisions of the old Code as in force immediately before the commencement of the new Code, as if this Code had not come into force. The above saving provision clearly indicates the intention of the Parliament that for the disposal of the various kinds of cases and proceedings already pending on the date when the new Code came into force the Drovisions of the new Code were to have no application as if it had not come into force at all, and all those were to be disposed of, continued held or made in accordance with the provisions of the old Code itself. In view of the above clear stipulation and manifested intention of the Parliament in my considered opinion it has got to be irresistibly held that the proceeding in question was bound to be disposed of under the nrovisions of the old Code and for its continuance and disposal the new Code would be deemed to have not taken its birth. Once this view is taken then it follows as a matter of corollarv that all the classes of Criminal Courts constituted under Section 6 of the old Code and empowered to deal with different cases, still continued to exist for the transitional period. This conclusion is so obvious and compelling that there is no scope for any argument for taking a different view. The position might have been otherwise or might have given room for some discussion had the savings provision not made any specific provision in this regard. This conclusion is so obvious and compelling that there is no scope for any argument for taking a different view. The position might have been otherwise or might have given room for some discussion had the savings provision not made any specific provision in this regard. But once the savings provision of the repealing Code itself made specific provision in an unambiguous expression, reference to any other prevision is not necessary." In this very case as regards the power of the Magistrate it has also been observed : "Two questions still remains to be considered. The first is as to what would be the effect of its violation, i.e. whether this was a mere irregularity which was curable, or was altogether incurable. This question can be answered at once with reference to Clause (J) of Section 530 of the old Code which enumerates the various irregularities which vitiate the proceeding altogether. It inter alia lays down that if any Magistrate, not being empowered by law in this behalf, makes an order under Chapter XII (under which Section 145 falls) then his proceedings shall be void. The Executive Magistrate (if he was not vested with 1st class powers) being not a Magistrate empowered by law under the old Code to make an order under Section 145 of the Code, the impugned order is void and has got to be set aside. In view of the clear statutory provision, it is not necessary to notice any decision in support of this proposition and it has to be held that the impugned order of the Executive Magistrate is void and must be set aside." So the order dated 1-3-1976 of the Executive Magistrate referring the case to the Civil Court could not be without jurisdiction. 13 As regards the order dated 18-1-1979 passed by Sri Vidya Bhushan, learned Executive Magistrate, it appears that he was not empowered to function as the Magistrate of 1st class. The respondent in the counter-affidavit has filed Annexure-B, a notification dated 28-4-1977 by which Sri Vidya Bhushan, Executive Magistrate, Daltonganj, Sadar, has been vested with the powers of the Magistrate of 1st class for the purpose of the Bonded Labour System (Abolition) Act, 1976. This notification was issued after the enforcement of the new Code and so this notification was not in existence in the life time of the old Code. This notification was issued after the enforcement of the new Code and so this notification was not in existence in the life time of the old Code. So following the said Full Bench Decision Sri Vidya Bhushan was not a Magistrate of first class and so the order passed by him is a void order which could not be cured and cannot be cured, and this order is liable to be set aside. 14. As regards the second contention of the learned counsel for the petitioner that some of the affidavits that were relied on by the learned Munsif were not sworn before the Magistrate who was in seisin of the case, it is well-settled that such a Magistrate who is not in seisin of the power and the affidavit sworn before him has got no effect, as has been held in the case of Chotan Prasad Singh and others V/s. Eari Dusadh and others, 1977 BBCJ 46 (SC), which proposition of law has not been challenged by the learned counsel for the other side. Learned counsel for the other side urged that out of 15 affidavits that were filed, 10 were sworn before the Magistrate who was not in seisin of the power and so those 10 affidavits are liable to be ignored and they are not legal evidence. But five affidavits out of 15 can be relied on as they were sworn before the Magistrate who was in seisin of the power. 15. Besides those affidavits there is other evidence also which has been considered by the learned Munsif in passing the order dated 26-9-1978. He has referred to an application dated 9-4-1977 filed by Ishwar Dayal Singh one of the members of the second party who is respondent No. 7 (in this petition) with an affidavit, in which he has clearly stated that Rajpati Devi is the own sister and Shailesh Kumar is the adopted son of Silwanti Devi. The learned Munsif has observed that in view of the assertion of Ishwar Dayal Singh one of the members of the second party contained in petition dated 9-4-1977 it cannot be said that Rajpati was not the sister of Ramyad Singh. The learned Munsif has observed that in view of the assertion of Ishwar Dayal Singh one of the members of the second party contained in petition dated 9-4-1977 it cannot be said that Rajpati was not the sister of Ramyad Singh. As regards the case of adoption as propounded by the members of the first party on the basis of custody of the original documents of Silwanti and the statement of the witnesses on the point of adoption as discussed above, it can be said that Sailesh Kumar as the adopted son of Silwanti Kuer. Even if those 10 affidavits are ignored yet the application dated 9-4-1977 and the affidavits in support thereof and the five affidavits sworn before the Magistrate who was in seisin are there which cannot be ignored. 16. Learned counsel for the petitioners has urged that this petition dated 9-4-1977 and affidavit in respect thereof has been filed during the pendency of the case. He has referred to paragraphs 2 and 4 of that petition for which he has said that Ishwar Dayal was a man of respondents 5 and 6 and so it has been brought on the record by them. As to this contention whatever may be the position, whether the man of O.P. or the first party or the second party, yet an application along with the affidavit has been filed an the same has been considered by the Court below and as such it cannot be said that this evidence is bad and it is liable to be ignored. So the order of the learned Munsif, on the ground that 10 affidavits are not a legal evidence, cannot be set aside because of there being 5 more authentic and legal affidavits and due application dated 9-4-1977. 17. Following the observations in the Full Bench case of Radha Devi (supra), this case is remanded to the learned Sub-Divisional Magistrate, Daltonganj, to pass suitable orders in accordance with law as if the old Code for the purpose of the case is in existence. 18. In the result this application is partly allowed. The order, dated 1-3-1976 passed by Shri K. P. Singh Magistrate and the learned Munsif on reference are up-held, but the order dated 18-1-1970 passed by Shri Vidya Bhushan, Executive Magistrate, Daltonganj, is set aside. 18. In the result this application is partly allowed. The order, dated 1-3-1976 passed by Shri K. P. Singh Magistrate and the learned Munsif on reference are up-held, but the order dated 18-1-1970 passed by Shri Vidya Bhushan, Executive Magistrate, Daltonganj, is set aside. The case is remanded to the Court of the Sub-Divisional Magistrate, Daltonganj, to pass suitable orders in accordance with the old Code of Criminal Procedure.