Babu Bipin Bihari Mukherji vs Emperor

The petitioner, Bipin Bihari Mukherji, has been bound down by Mr. E.A. Guest, Deputy Magistrate of Purnea, u/s 107 of the Code of Criminal Procedure to keep the peace for a period of one year and in default to undergo simple imprisonment for that period.

The learned Assistant Government Advocate has raised a preliminary point objecting to the hearing of this petition by us. The ground of objection taken by him is that the petitioner had a remedy u/s 125 of the Code of Criminal Procedure and should have applied to the District Magistrate of Purnea for cancelling the order passed by Mr. Guest. He relies on two decisions of the Allahabad High Court given by Knox, J. [Emperor v. Abdur Rahim A.W.N. (1905) 143; 2 Cr.L.J. 335 and the case cited therein No. 114 of 1905.]

The learned Counsel appearing on behalf of the petitioner resists this contention, on the ground that the powers exercisable by a District Magistrate u/s 125 of the Code are within his original jurisdiction and although this is the section on which the two Allahabad cases have rested, yet there is a point of principle involved in that the Calcutta rulings as well as other rulings of the Allahabad and Bombay High Courts have allowed such a preliminary objection to prevail only in cases where the jurisdiction of the High Court was concurrent with the revisional jurisdiction of subordinate Courts and that, therefore, the rulings of the High Courts of Calcutta, Bombay and Allahabad, except the two rulings given by Knox, J., do not support the view that section 125 of the Code of Criminal Procedure is a section that can be allowed to stand in the way of the hearing of the petition by this Court. The learned Counsel on behalf of the petitioner also contends that the dictum laid down by Knox, J., is by a single Judge and unless there is a decision of a Divisional Bench holding section 125 of the Code as a ground of objection we should not refuse to entertain the application before us.

In Musan Rai v. Birich Roy 41 Ind. Cas. 831; 2 P.L.W. 115; 18 Cr.L.J. 863, a Division Bench of this Court has held that in cases where the High Court has concurrent revisional jurisdiction with a subordinate Court, the aggrieved party should in the first instance seek his remedy before the subordinate Court. In this view it would appear that the High Courts of Patna, Calcutta, Allahabad and Bombay are in full agreement: vide Bhuyan Abdus Sobhan Khan , Shafaqat Ullah Vs. Wali Ahmad Khan, , Emperor v. Kali Charan A.W.N. (1904) 232; 1 Cr.L.J. 914, Queen-Empress v. Chagan Dayaram 14 B. 331; 7 Ind. Dec. (N.S.) 681. Even if it be conceded that the two decisions given by Knox, J., are in excess of the principle laid down in the other decisions, the preliminary objection taken by the learned Assistant Government Advocate must prevail, inasmuch as the revisional jurisdiction of this Court u/s 435 of the Code is shared by the subordinate authorities and there is nothing to show that the Sessions Judge and the District Magistrate of Purnea are precluded from dealing with the present case. The jurisdiction of the Sessions Judge and the District Magistrate is concurrent with that of the High Court, even where they could not pass formal orders but only could refer to the High Court u/s 438--Queen-Emprees v. Reolah 14 C. 887; 7 Ind. Dec. (N.S.) 585 and Bhuyan Abdus Sobhan Khan, Bhuyan Abdus Sobhan Khan .

The learned Counsel on behalf of the petitioner contends that as a matter of practice cases u/s 107 of the Code are generally dealt with by the District Magistrate u/s 125 of the Code of Criminal Procedure. This may be so, and probably it is due to the fact that acting u/s 125 the District Magistrate may himself deal with a case like this without referring it for orders to the High Court u/s 438, but this is no ground for holding that the revisional jurisdiction of a Sessions Judge or a District Magistrate under sections 435 and 438 of the Code is in any way trenched upon by the provisions of section 125. It is evident, therefore, that the application before us is one with reference to which the revisional power of the Sessions Judge and the District Magistrate of Purnea is exercisable. There is nothing, therefore, to distinguish the present case from the principles laid down in the decisions of the four High Courts referred to above.

In the circumstances we must allow the preliminary objection taken by the learned Assistant Government Advocate and decline to entertain the application, but we do so without any prejudice to the right of the petitioner to move this Court in case he fails to receive satisfaction from the Sessions Judge or the District Magistrate of Punrea. With these remarks the petition is rejected.