Ramchandra Nagoji Kadam vs Dhondiram Nagoji Kadam

M.G. Chitale, J.—This revision application arises out of proceedings started u/s 145 of Criminal Procedure Code. Sub-Divisional Magistrate, Chiplun, found that party No. I was in possession at the material time and passed the consequential order. Against this order, party No. 2 preferred a revision application to the Sessions Court, Ratnagiri. The learned Sessions Judge held that in view of the decision of this Court viz., Lallubhai Dayaram Bhatt Vs. Karimbhai Dattekhan and Another, , he had no jurisdiction to entertain the above-mentioned revision application.

In this revision application, Mr. Kode for the petitioner, i. e, party No. 2, contends that the view taken by the learned Sessions Judge is not correct, inasmuch as the judgment of the Division Bench in the above-mentioned case clearly leaves the material question open. According to Mr. Kode, the material question in this case is whether a Sub-Divisional Magistrate acting u/s 145, Criminal Procedure Code, can be said to be an inferior Criminal Court mentioned in section 435 (1) of Criminal Procedure Code. In the above-mentioned reported decision the learned Chief Justice in his judgment alter referring to the question as to whether a proceeding u/s 145, Criminal Procedure Code, is a proceeding entertained by a Criminal Court observes: ''We do not think that it is necessary to decide this question in this case.''

In view of this observation, I have allowed Mr. Kode to argue that point. Mr. Kode submits that a Sub-Divisional Magistrate acting u/s 145, Criminal Procedure Code, is an inferior Criminal Court contemplated by section 435 (1) of Criminal Procedure Code. Mr. Kode refers to the heading of Chapter II of Criminal Procedure Code, which is: ''Of the constitution of Criminal Courts and Offices''.

He then refers to sections 6 and 6-A and points out that while enumerating classes of Criminal Courts, Sub-Divisional Magistrates are not excluded, on the other hand the expression used is "Courts of Magistrate" and that, according to Mr. Kode, indicates that even Sub-Divisional Magistrates, though they are grouped under the heading "Executive Magistrates" arc inferior Criminal Courts contemplated by section 435 (1). I am unable to accept this contention. It is true that the heading of Chapter II shows that the Chapter deals with the constitution of Criminal Courts. All the same, section 6 makes it quite clear that after the amendment by Bombay Act XXIII of 1951, which separated the judiciary from the executive, there are only two classes of Courts, viz. Courts of Sessions and Courts of Magistrates. It is pertinent to note that section 6-A does not use the expression ''Courts of Magistrates''; it uses the expression ''classes of Magistrates''. In my opinion section 6-A does not deal with Criminal Courts, but it deals with only classes of Magistrates. Merely because an officer is designated as a Magistrate, it does not necessarily follow that he is constituted an inferior Criminal Court as contemplated by section 435 (1), unless there is some specific provision to indicate that. Mr. Kode then refers to sections 17 and 17-A. Section 17 it is important to note, uses the expression ''Judicial Magistrates'' as contrasted with the expression ''Executive Magistrates'' used in section 17-A. That, in my opinion, negatives the contention advanced by Mr. Kode. Section 17 lays down that all Judicial Magistrates shall be subordinate to the Sessions Judge who shall distribute business amongst them. Section 17-A lays down that all Executive Magistrates appointed u/s 13 or 14 shall be subordinate to the District Magistrate. The wording of section 17-A makes it quite clear that the Code does make a clear distinction between Judicial Magistrates who preside over inferior Criminal Courts as contemplated by section 435 (1) and Executive Magistrates who are assigned some special executive work by some specific provision in the Criminal Procedure Code.

For reasons indicated above, I am of the view that a Sub-Divisional Magistrate acting u/s 145 of Criminal Procedure Code, is not an inferior Criminal Court as contemplated by section 435 (1) of Criminal Procedure Code. Such a proceeding cannot be said to be a proceeding entertained by a Criminal Court.

I may mention here that justice Dixit has taken a similar view in Gosai Babubharthi Devabharthi v. Bai Jssoda Ramgar (1955) Criminal Revision Application No. 1338 of 1954 decided by Dixit J., on February 11, 1955 (Unrep). Mr. Kode points out that Mr. Justice Dixit has not referred to section 438- A. As already stated, that however would not make any difference. Mr. Kode referred to In Re: Ramanath Bholgothra (of Jammu), . Reliance, is placed on paras. 5 and 6 of the judgment. The learned Judge refers to the Privy Council decision viz., Clarke v. Brajendra Kishore Rey Chowdhny I L R (1912) Cal. 953 (P C) The observations of the Privy Council relied upon are (p. 966):

...For the sake of brevity the Code uses the terms ''Court'' and ''Magistrate'' generally, if not always, as convertible terms.

These observations would not help the present petitioner in view of the several amendments brought about by Bombay Act, XXIII of 1951 and Bombay Act XXXIX of 1955. Bombay Act XXIII of 1951 brought about separation of judiciary and executive, hence the amendments brought about by that Act would have a material bearing.

Mr. Gambhirwala for the State refers to Vedappan Servai and Others Vs. M. Periannan Servai and Others, . Reliance is placed on the observations at p. 72. After referring to section 6 of Criminal Procedure Code, the learned Judge observes:

...The section only means that among the Criminal Courts in British India are Magistrates but this does not necessarily mean that the Magistrates are always Courts, It can only mean that when they act judicially they are Criminal Courts. Section 6 is not inconsistent with the idea that Magistrates may sometimes act in an executive and administrative capacity and not as a Court.

With respect, I agree with these observations. It is the functions carried out by a Magistrate that decide whether he is while discharging those functions acting as a Court or is acting in his executive or administrative capacity.

Mr. Kode referred to the definition of ''judicial proceeding" in section 4 (m) of Criminal Procedure Code. So also he relies on the fact that u/s 145, Criminal Procedure Code, a Magistrate is entitled to record evidence on oath. This, according to Mr. Kode, indicates that a Magistrate acting u/s 145 is also a Criminal Court. What goes on before a Magistrate u/s 145 may be a judicial proceeding for certain purpose, but that would not, in my opinion, constitute such a Magistrate an inferior Criminal Court, as contemplated by section 435 (1) of Criminal Procedure Code. The definition would be material where that expression is used in a section. It is well-known that for certain purposes even the proceedings which are not proceedings of a Court of law are deemed to be judicial proceedings. That does not constitute the authorities before whom such proceedings go on as Courts.

For reasons indicated above, I am of the opinion that the view taken by the learned Sessions Judge that he has no jurisdiction to entertain the revision application before him is correct. The rule is, therefore, discharged. Stay vacated.