Birju Singh Dhidma Singh and Others vs The State

Teja Singh, C.J.—The facts leading to this reference by the District Magistrate, Narnaul may be shortly stated:

Proceedings were started in the Court of S. Gurdev Singh Gill, Assistant Commissioner, Narnaul u/s 145, Criminal P.C. By his order dated 26-7-1951 S. Gurdev Singh issued notices to the parties in the capacity, of a Magistrate First Class, Narnaul. The other side made a revision petition to the District Magistrate contending that since on the day the orders were issued by S. Gurdev Singh he had not the powers of the Magistrate First Class, the orders are ultra vires and praying that the same be set aside. It was represented to the District Magistrate that according to the words of Section 145 action thereunder could only be taken by a District Magistrate, Sub-Divisional Magistrate or a Magistrate of the First Class and since the powers of a Magistrate of First Class were conferred upon S. Gurdev Singh by virtue of Government Notification No. 395 dated 29-8-1951 published in Government Gazette dated 16th September'' 1951, he had no jurisdiction to initiate the proceedings. On the other hand the position taken up by the person who initiated the proceedings was that though powers of a Magistrate of First Class were explicitly conferred upon S. Gurdev Singh by the Notification mentioned above, he had such powers by implication even before because of Home Department Notification No. 11 dated 15-1-1951, published in the Government Gazette of 28th January 1951. This notification deals with the division of Magistrates of the State into two categories, judicial Magistrates and executive Magistrates and lays down that the Magistrates who are put in the category of executive Magistrates, and they included all, Assistant Commissioners, have the power to try cases under Chapter 8, Criminal P.C. and to make orders in possession cases under Sections 145, 146 and 147, Criminal P.C.

It was argued that since the Notification of 15-1-1951 empowered all Assistant Commissioners to try all cases under Chapter 8 and also to make orders in cases ''inter alia u/s 145, it impliedly had conferred upon them powers of the Magistrate of First Class who had jurisdiction to start proceedings u/s 145, Criminal P.C. The, learned District Magistrate was inclined to agree with the second position but since he could not make up his mind definitely he has referred the case for decision to this Court. The concluding words of his order read as below:

This Notification the meant Notification of 15th Jan. 51) therefore impliedly confers powers of a Magistrate of the 1st Class on Assistant Commissioners. However, the position is ambiguous and this report is submitted to the Hon''ble Judges of the High Court for reference whether Sardar Gurdev Singh Gill can be construed to have been duly conferred with the powers of Magistrate 1st Class prior to Notification No. 395 dated 29-8-1951 in terms of Notification No. 11 referred to above.

Mr. Piara Lal who appears on behalf of the respondent in the original proceedings has raised a preliminary objection. He contends that a reference to the High Court could only be made u/s 432, Criminal P.C. and that too by a Presidency Magistrate. In my opinion this, contention is correct. The only other section which enables a District Magistrate to report a case to the High Court is Section 438, but the scope of this section is quite different from that of Section 432. Section 432 comes into play when a question of law arises in a case pending before a Presidency Magistrate and either because he finds himself unable to decide that question or he thinks that the matter is so important that .the opinion of the High Court should be obtained thereon, he can refer the matter to the High Court for its opinion. Section 438 on the other hand refers only to cases which are pending not in the Court of the Sessions Judge or the District Magistrate but in a Court subordinate to their Courts and even in those cases the only power that the section gives to the Sessions Judge or the District Magistrate is to report the case to the High Court for decision and not for opinion.

As 1 read the words of the section it appears to me that while taking action under it the Sessions Judge or the District Magistrate, as the case may be must give expression to his own opinion and send up the case to the High Court with the expression of that opinion. This means that if a case is pending before the Sessions Judge or the District Magistrate and a question of law arises therein it is the duty of the Sessions Judge or the District Magistrate to decide that point himself and he can report the case to the High Court only if it is not within his power to decide it finally. This aspect of the matter was considered by Blacker J. in - ''Mohammad Sharif v. Diwan Singh'' AIR 1940 Lah 95 and he held that reference to the High Court for the opinion of that Court can only be made u/s 432, Criminal P.C. The learned Judges while discussing the difference between Section 438 and Section 432 made the following observation:

It is true that a case reported by a Sessions Judge u/s 438 is frequently loosely described as a reference but when it comes to interpreting a statute one cannot gain any support from the mere fact that a term is habitually loosely used. One has to look at the statute itself. Looking at the statute itself I find that a Court of reference can only be a Court such as is described in Section 438 where the word ''report'' is used instead. There would have been no difficulty in using the word ''refer'' in Section 438 in place of the word ''report'' had it been the intention of the Legislature to include a Court acting u/s 438 in the category of Courts of reference.

It was held by Sadasiva Aiyar J. in - ''Re Palani Gownden'' AIR 1914 Mad 100 that a District Magistrate is not competent to refer to a High Court u/s 438 a point of law actually arising in a case pending before him. This is what he observed regarding the scope of Section 438:

Section 438, Criminal P.C. no doubt authorises the District Magistrate to make reports to the High Court on examination of the records of the proceedings of an inferior Criminal Court, but such reports should be made only in a case where the proceedings are not themselves the subject of a revision case or an appeal case pending before the District Magistrate, whose duty it has therefore become himself to pass a judicial order on that case. Section 438 was not intended to enable the District Magistrate to get the opinion of the High Court on a question of law arising in a case pending before him or to transfer the decision of a difficult case pending before him to the High Court.

This decision was followed by another learned Judge of the Madras High Court. ''In re Kotrappa'' AIR 1949 Mad 11 wherein it was held that a District Magistrate is not competent to report to the High Court u/s 438 a point of law actually arising in a case pending before him or the subordinate Magistrate. The learned Judge remarked:

It is not the function of the High Court to give opinions on questions of law raised during the course of proceedings in a lower Court.

If we examine the present reference by the District Magistrate in the light of what was held in the above mentioned cases there, can be no doubt that it suffers from two defects. One is that the question of law which has been referred to this Court for opinion arose before the District Magistrate himself in the course of the revision petition that had been preferred by the respondent. The second is that it was the duty of the District Magistrate to give his own finding on the question that arose before him and he had no power to refer it for opinion to the High Court. Accordingly I hold that the reference is not competent.

The question now is, whether in spite of the irregular nature of the reference it is open to me to decide the case. For this reference must be made to Section 439, Criminal P.C. which deals with the High Court''s powers of revision. The relevant words of the Section are:

In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge the High Court may, in its .discretion, exercise any of the powers conferred on a Court of Appeal by Sections...

It will be seen that the powers conferred by this Section on the High Court are very wide and are not limited to cases in which the record is sent for by the Court itself or which are reported to it for orders u/s 438. Since the matter has now come to this Court in spite of the fact that the reference is irregular, I am of the opinion that it is within any power to deal with it u/s 439, Criminal P.C. I am supported in this view by the observation made by Sulaiman J. in - Emperor Vs. Patrakhan, It is no doubt correct that I am not bound to exercised jurisdiction which Section 439 gives me but taking into consideration the fact that the question raised goes to the very root of the case and if left undecided it will result in protracting proceedings in the subordinate Courts and in subjecting the parties to useless expense and worry, I think it is my duty to decide it once for all, and I proceed to do so.

Both sides are agreed that at the time S. Gurdev Singh made preliminary order he had not been given any powers of the Magistrate of First Class by the Government as is required by Section 12, Criminal P.C. As I have mentioned above reliance was placed on behalf of the Petitioner, on Home Department Notification No. 11, dated 15-1-1951 but having carefully gone through that Notification cannot accept the contention that it gave Sardar Gurdev Singh the powers of a Magistrate First Class by implication, even though he occupied the rank of an Assistant Commissioner. The object of Notification was merely to differentiate between the function of the judicial Magistrates and executive Magistrates, and not to invest them with any powers. Accordingly when it laid down that they could dispose of cases under Chapter 8., Criminal P.C. or they could make orders in cases u/s 145, Criminal P.C. obviously it presupposed that they had jurisdiction to do so by virtue of the requisite magisterial powers that had already been conferred upon him. If they had no such powers they lacked the jurisdiction and the notification did not improve their position in any way. Since it is admitted that I Gurdev Singh had not been given the powers of a Magistrate of First Class before 26-7-1951 the order of that day made by him was without jurisdiction and so are the entire proceedings that followed that order. The result is that that order as well as the entire proceedings in the case are quashed.