Rafiq Ismail Shikalgar vs Appa Yeshwant

V.R. Vimadalal, J.—This is a revision application seeking to set aside an order passed by Mr. C. S. Kotwai, Additional Chief Presidency Magistrate, dismissing the petitioner''s application u/s 145 of the Code of Criminal Procedure.

The short facts necessary for the purpose of this judgment are that on February 9, 1972, the present petitioner filed an application u/s 145 of the Code of Criminal Procedure in the Court of the Additional Chief Presidency Magistrate at Dadar against opponents Nos. 1 and 2 for having forcibly dispossessed him of the southern portion of the room occupied by him by breaking open the lock. Opponent No. I was in possession of the remaining portion of that room, and opponent No 2 is the landlord of the premises in which the said room is situated. On the day on which the application was filed in the Court of the Additional Chief Presidency Magistrate by the present petitioner, some material was placed before the learned Magistrate who thereafter adjourned the proceeding to February 15, 1972 in order to enable the applicant to produce some more material. On that date, however, the present petitioner was absent and the learned Additional Chief Presidency Magistrate therefore made an order, "Application dismissed." It is from that order that the original applicant has approached this Court in revision.

Two points of law have been urged before me, and they are ; (1) that the Additional Chief Presidency Magistrate had no jurisdiction to deal with a proceeding u/s 145 of the Code of Criminal Procedure; and (2) that the order of the Additional Chief Magistrate is erroneous in law, in so far as a proceeding u/s 145 of the Criminal Procedure Code not being a complaint within the meaning of section 4 (I) (h). could not be dismissed either u/s 247 or u/s 259 of the Code. I will proceed to deal with each of these points.

The learned advocate for the petitioner pointed out to me that the Additional Chief Presidency Magistrate is not one of the Magistrates specified in section 145 who can entertain a proceeding under that section. He relied on the provisions of sub-section (4) of section 18 of the Criminal Procedure Code which is in the following terms :

(4) The State Government may appoint any person to be an Additional Chief Presidency Magistrate, and such Additional Chief Presidency Magistrate shall have all or any of the powers of a Chief Presidency Magistrate under this Code or under any other law for the time being in force, as the State Government may direct.

The learned advocate for the petitioner, therefore, contended that unless an Additional Chief Presidency Magistrate was expressly conferred the power to entertain a proceeding u/s 145 of the Criminal Procedure Code, he would have no jurisdiction to deal with such a proceeding. In my opinion, this argument of the learned advocate for the petitioner, though somewhat in generous, is without substance and is based on an erroneous reading of the said sub-section. The said sub-section is expressed in disjunctive form and it is quite obvious as a matter of plain language that the words "as the State Government may direct" can qualify only the words "any of the powers of a Chief Presidency Magistrate under this Code or under any other law for the time being in force," but cannot be read as qualifying the words ''''all the powers of a Chief Presidency Magistrate under this Code or under any law for the time being in force". To read those words as qualifying the later words would, in my opinion, result in a construction which is not even grammatical in form. I hold that, on a proper interpretation of sub-section (4) of section 18, an Additional Chief Presidency Magistrate has all the powers of a Chief Presidency Magistrate and those need not be expressly conferred upon him by the State Government. If, however, the State Government intends to restrict those powers and to confer only some or particular powers upon him, it could do so by issuing a direction in that behalf, and it is for that reason that sub-section (4) lays down that the State Government is empowered to confer upon the Additional Chief Presidency Magistrate "any of the powers of a Chief Presidency Magistrate" as it may direct. I cannot help feeling that even that construction is not very correct as a matter of form but, in my opinion, it is not possible to place any other reasonable construction on sub-section (4) of section 18. The view which I have taken on a plain reading of the said sub-section derives support from the view taken by a Division Bench of the Calcutta High Court in the case of Kanayalal Bengani v. Kanmuti AIR 84 Cal. 405, in which the question was whether an Additional Chief Presidency Magistrate had the power to send a case to another Magistrate for judicial enquiry and report u/s 202 of the Code of Criminal Procedure. In holding that an Additional Chief Presidency Magistrate had that power, it was held that, by section 18, clause (4) of the Code, an Additional Chief Presidency Magistrate had been vested with all the powers of a Chief Presidency Magistrate, one of which was the power to send a case to a subordinate Magistrate u/s 202 of that Code. There is, therefore, no substance in this contention advanced on behalf of the petitioner and the same must be rejected.

As far as the second contention urged by the learned advocate for the petitioner before me is concerned, it is true that section 145 of the Code of Criminal Procedure does not speak of a dismissal of the application made under that section in any contingency whatsoever. Sub-section (1) of that section, however, lays down that the Magistrate before whom such an application is made can make a preliminary order as contemplated therein, only if he is satisfied from the police report or other evidence that a dispute likely to cause breach of the peace exists concerning land or water or the boundaries thereof. It is implicit in the provision that if the learned Magistrate is not so satisfied, he can refuse to make a preliminary order of the nature contemplated by that section which, in effect, though not in terms, would entail a dismissal of that application. That is precisely what the learned Magistrate intended to do in the present case and his order is, in my opinion, in substance correct, though it would have been more correct as a matter of form if he had merely said that he declined to make a preliminary order under sub-section (1) of section 145 in view of the absence of the petitioner and his not having placed any further material before him as directed by the order passed by him on February 9, 1972. In the absence of such material, the learned Additional Chief Presidency Magistrate should have held that he was not satisfied that any dispute of the nature contemplated by section 145 arose in the case so as to call for a preliminary order.

A very similar situation arose before the Calcutta High Court in the case of Ram Chandra v. Madhab Nayek AIR 1953 C&l. 484 in which the form of the learned Magistrate''s order was, ''''Drop proceedings". A reference made by the Sessions Judge, who had recommended that it should be set aside, was rejected by the High Court, Chunder J. holding that the order of the learned Magistrate was right, except that he should have dismissed the application. The learned Judge observed in the said case that the dismissal would be an exercise of ordinary commonsense and no section of the Criminal Procedure Code needed to be cited for the same. It is not clear from the report of the said case, at what stage the Magistrate had made the order in that case. Having regard to the fact that no preliminary order had yet been made in the present case, I do not think it is necessary for me to go that far as, in the view which I take, the order made by the learned Additional Chief Presidency Magistrate really amounted to a refusal to make a preliminary order on the ground that he was not satisfied that a dispute likely to cause breach of peace existed concerning the room in question. It may be that, after a preliminary order directing an inquiry is made, the Magistrate concerned would have to dismiss the application, if the parties did not appear before him, but that is a matter on which I am not called upon to pronounce in the present case.

In the result, this Revision Application fails and must be dismissed and the rule discharged.