Devidan Sowcar and Another vs Janaki Ammal and Others

Sundaram Chetty, J.—In this criminal revision case, the petitioners seek the cancellation of the order of the Commissioner of Police,

Madras, in Criminal Miscellaneous Case No. 3449 of 1931, dated 31st October, 1931, regarding the: disposal of certain jewels taken from them

by the Police, in the course: of an investigation of the offences of cheating and criminal breach of trust, alleged to have been committed by one

Baby Animal, a woman of the dancing girl caste. The petitioners are professional money-lenders, carrying on business in Sowcarpet, Madras.

They allege that these jewels were pledged with them by the said Baby Animal, who had previous dealings with them, and the loans were

advanced by them on the pledge of these jewels, bona fide believing her to be the owner thereof, and without knowledge of any defect in her title.

The investigation by the Police seems to have proceeded to some extent, but before its completion, the accused (Baby Ammal) died on 10th

October, 1931. Dealing with the disposal of these jewels, the Commissioner of Police passed orders u/s 523, Criminal Procedure Code, directing

the delivery of these jewels to the several complainants (who are also said to be dancing girls) and declined to modify those orders, though the

petitioners requested him to return the jewels to them, on their furnishing proper security.

Two questions have been argued in this criminal revision case. The first point is, whether the Commissioner of Police has jurisdiction to pass

orders u/s 523, and the second point is, whether the order in question is liable to be interfered with in revision.

The first question depends for its answer on a proper construction of Section 7 of the Madras City Police Act (Madras Act III of 1888). It runs

thus:

The Commissioner shall, by virtue of his office, be a Presidency Magistrate, but shall exercise his powers as Magistrate subject to such orders as

may from time to time be issued by the Governor in Council: Provided that he shall not exercise any powers under Chapters XVIII, XX or XXI of

the Code of Criminal Procedure, 1882.

There is no doubt that this section constitutes the Commissioner of Police ex officio a Presidency Magistrate. This declaration, standing by itself,

without any further qualification, would entitle him to exercise the powers conferred by the Criminal Procedure Code on an ordinary Presidency

Magistrate, and we have to see whether any and, if so, what kinds of limitations or restrictions are placed on the exercise of such powers by him

by the1 aforesaid Section 7 of the Madras City Police Act. This section expressly provides that he shall not exercise any powers under Chapters

XVIII, XX and XXI. It means that he cannot, by virtue of his position as Presidency Magistrate, try summons cases, or warrant cases, or hold

preliminary inquiry into cases triable by the Court of Session or High Court. This is an absolute limitation to his powers, imposed by the statute

itself, and no order of the Local Government can alter or modify this limitation. There is no difficulty so far, in construing the meaning of the section.

The dispute in this case is, as to the effect of the clause in the section, vis., ""but shall exercise his powers as Magistrate subject to such orders as

may from time to time be issued by the Governor in Council"". Mr. Jayarama Aiyar, for the petitioners, lays particular stress on the word ""but"" and

argues that the Commissioner, though declared to'' be a Presidency Magistrate, can only exercise such of the powers of a Presidency Magistrate

under the Code, as the Governor in Council may choose to vest in him by a special order or orders. In other words, his contention is, that unless

so specially invested with any of the powers, he would only be a Presidency Magistrate in name and cannot exercise any power as such. It is

difficult to accept this somewhat extreme view. It is, in the first place; against the necessary implication in the first part of the section, viz., ""The

Commissioner shall by virtue of his office be a Presidency Magistrate,"" that he, being constituted as a Presidency Magistrate, has the right to

exercise the powers conferred by the Code on a Presidency Magistrate. In my view, the use of the word ""but"" is to indicate a limitation to the

natural consequence of declaring him to be a Presidency Magistrate, by making him subject to the orders of the Governor in Council from time: to

time in the exercise of those powers. When the: Code itself confers certain powers on an ordinary Presidency Magistrate, any one appointed to be

or declared as such, can exercise those powers, unless those powers are restricted or curtailed at the time of the appointment or declaration. The

contention of Mr. Jayarama Aiyar can be accepted if, the restrictive clause in the aforesaid Section 7 were as follows: ""but shall not exercise his

powers as Magistrate unless specially invested with any1 of them by the orders of the Governor in Council."" The word ""but"" is only a conjunction,

and there is no insurmountable ambiguity in the section. Reliance is placed on the following passage at, page 241 in Maxwell on the Interpretation

of Statutes (6th Edition):

It has been said that the words conferring such a jurisdiction must be clear and unambiguous; and that an inferior Court is not to be construed into

a jurisdiction.

I have no doubt as to the applicability of this rule to this case.

In exercise of the power conferred upon him by the aforesaid Section 7, the Governor in Council has been issuing orders from time to time. In

G.O. No. 1443, Judicial, dated 15th July, 1893, it is declared that the Commissioner of Police shall not, in his capacity as a Presidency

Magistrate, exercise any of the powers conferred upon Presidency Magistrates by Sections 155 and 191 of the Code of Criminal Procedure. This

is consistent with the interpretation of Section 7 contended for by the learned Crown Prosecutor. If it was thought, that the Commissioner cannot

exercise any of the powers of an ordinary Presidency Magistrate, if not specially invested with it under an order of Government, there was no need

for the aforesaid G.O. at all. Under two subsequent G.Os., this restriction was relaxed in two kinds of cases, and eventually, under G.O. No.

1684, Judicial, dated 1st November, 1911, the restriction was still further relaxed by allowing the Commissioner to order the investigation by the

Police of all non-cognizable cases under Sections 155 and 202 of the Criminal Procedure Code.

Before passing G.O. No. 1271, Judicial, dated 13th August, 1898, by which a restriction was placed on the exercise by the ''Commissioner in

his capacity as a Presidency Magistrate, of the power of taking cognizance of offences u/s 190 of the Code of Criminal Procedure, the opinion of

the Advocate-General was sought for by the Government on this identical question, and it was published in the Fort St. George Gazette of 1898

along with the G.O. The learned Advocate-General''s. opinion is stated thus:

In my opinion the Commissioner of Police, as Presidency Magistrate, can exercise all the powers of an ordinary Presidency Magistrate excepting

the powers under the specified chapters of the Code of Criminal Procedure and any of the powers of an ordinary Presidency Magistrate which the

Government have already directed, or may in the future direct, he shall not exercise.

I am in complete agreement with this view. It is urged by Mr. Jayarama Aiyar that this opinion is not binding on this Court. He is technically

right. But it is an opinion which is certainly entitled to respect.

It is contended by Mr. Jayarama Aiyar that if this view be accepted, certain obvious inconveniences will be the result, which, the Legislature

should not be deemed to have allowed. His argument is, that if it should be taken that the Commissioner can, in his capacity as a Presidency

Magistrate, exercise the powers provided for in the Code, except those taken away by Section 7 of the Madras City Police Act expressly and

those curtailed by the orders of Government, he can pass an order for maintenance u/s 488 of the Code, direct the issue of proceedings u/s 107,

for furnishing security for keeping the peace, compel the restoration of abducted females u/s 552, and record a confession also. But I must

observe, that this last power he cannot exercise u/s 164, as that section shows that a Presidency Magistrate can record a confession, if he is not a

Police Officer. The other powers specified above, as illustrations, can, in my opinion, be exercised by the Commissioner, in his capacity as

Presidency Magistrate, so long as those powers are not curtailed under the orders of Government. If the Government should, in the exercise of its

discretion, consider that any of these powers should be denied to the Commissioner, it is open to the Government to pass the appropriate order

u/s 7 of the Madras City Police Act. Such must have been the intention of the Legislature when framing Section 7 of that Act. The wording of

Section 7 of the Madras District Police Act, 1859 (Act XXIV of 1859) and of section of the: Police Act (V of 1861) is similar in respect of the

powers of the Inspector-General of Police, as a Magistrate.

By virtue of Section 31 of the Madras City Police Act, the provisions of Section 523 of the Code of Criminal Procedure have to be applied,

as far as practicable, to all property seized or taken charge of by the Police. In his capacity as Presidency Magistrate, I hold that the Commissioner

of Police can exercise the power u/s 523 of the Code, in the absence of any Government order, stating that he shall not exercise such a power.

The objection as to want of jurisdiction fails.

As regards the second point, there is no doubt that the discretion given by Section 523 must be judicially exercised. In the present case, the

jewels in question were admittedly taken by the Police from the possession of the petitioners. The seizure was on account of a suspicion, in view of

the allegations in the complaint, of the commission of an offence by the late Baby Ammal, as regards these jewels. The investigation by the Police

was not even complete: when the death of the accused occurred. In the absence of any reasons given by the Commissioner, in the order sought to

be revised, it is not easy to find out whether such an order was passed in the sound exercise of discretion judicially. The petitioners claim to be

pledgees of these jewels in good faith. u/s 178-A of the Indian Contract Act, the pawnee would acquire a good title to the goods, if he acts in

good faith and without notice of the pawnor''s defect of title, though the pawnor obtained possession by cheating or fraud. Even assuming that

these jewels belong to the several complainants in this case, they may not be entitled to possession, without redeeming the pledges, which may be

found by a Civil Court to be valid. The Commissioner does not seem to have paid due attention to these aspects when he passed an unconditional

order for the delivery of the jewels to the several complainants. The principle of the decision in Srinivasmoorthi v. Narasimhalu Naidu (1927) ILR

50 M.916 : S3 M.L.J. 309 and of a later decision of Jackson, J., reported in V.K. Vaiyapuri Chetty Vs. Sinniah Chetty, has to be applied to the

present case. There is no good ground for deviating from the general rule, that, where the offence charged is not made out, the property seized

should be returned to the person from whom it was taken. The order of the Commissioner in the present case cannot therefore be upheld. In

setting aside that order, I direct the delivery of the jewels in question to the petitioners from whom they were seized, on their furnishing security for

the production of those jewels or payment of the value thereof, to the satisfaction of the Commissioner, in order to safeguard the interests of the

complainants who claim to be the owners thereof.