Shardaprasad Mishra vs State of M.P.

Surajbhan, J.—This is a petition u/s 561A of the Code of Criminal Procedure by Sharda Prasad Mishra, Sub-Inspector of Police, Jabalpur, praying that the proceedings pending against him before Shri S.N. Tiwari, Additional District Magistrate (Executive), Jabalpur in Misc. Cr.C. No. 421 of 69 wherein the learned additional District Magistrate has issued a show cause notice against the petitioner as to why he should not be convicted and punished for the offence u/s 228 of the Penal Code be quashed.

The facts in brief, giving rise to this petition are, that the District Magistrate, Jabalpur, had ordered a magisterial enquiry on 19-8-1969 in regard to an alleged incident of marpit, said to have taken place at the Naudars bridge, on the evening of 18-8-1969, between the petitioner and one Ravi Nanda of Jabalpur, which resulted in injuries to the latter, and this enquiry was entrusted by the District Magistrate, Jabalpur, to Shri S.N. Tiwari, Additional District Magistrate (Executive), Jabalpur. During the proceedings, the question of contempt arose, and after service of the notice as aforesaid for proceeding against the petitioner for contempt of court, the petitioner raised two objections, and the first was, that there was no judicial proceeding before the learned Additional District Magistrate (E), and secondly, that the learned Magistrate could not proceed legally against him u/s 480 of the Code of Criminal Procedure, as he had taken no action against him on the last date of hearing.

The learned Additional District Magistrate (E) passed a detailed order on 27-6-1970 to the effect that the enquiry before him was a judicial enquiry and he was competent to proceed against the petitioner u/s 480 of the Code of Criminal Procedure for the purposes of contempt u/s 228 of the Penal Code. The reasoning given by the learned Additional District Magistrate is, that the magisterial enquiry that be was conducting was under the statutory provisions of law, and he has referred to Regulation No. 241-D, contained in Part 11 of the Chapter 8 of the Police Regulations, and also to the fast that during the enquiry he had taken evidence of the parties on oath, and he was invested with the magisterial powers. He had relied on the ruling reported in Emperor v. Kuna Sah ILR 28 -1906 All 89.

Shri S.C. Dutt, the Learned Counsel for the petitioner, has invited my attention to the Police Regulation No. 241-D, H and I and contended that it was a magisterial investigation in the hands of the learned Additional District Magistrate and he was required to submit his report to the District Magistrate, and thereupon, the District Magistrate was to decide whether the petitioner could be held guilty of any misconduct, and if so, if any action suitable in the circumstances of the case be taken against him. He also stressed that the learned Additional District Magistrate was not sitting as a court, and so there was no judicial proceeding before him, and he relied in support of his contention on the rulings reported in Chimansingh Balbhadra singh v. State AIR 1951 MB 44.

Shri N.S. Kale, the Learned Counsel on behalf of the State, on the other hand has argued that according to the definition of ''judicial proceeding'' given in section 4 (m) of the Code of Criminal Procedure, the learned Additional District Magistrate was conducting the enquiry and taking evidence on oath, and so it was a judicial enquiry and hence he was competent to take action against the petitioner for contempt of court.

In order to appreciate the arguments advanced by the Learned Counsel on both sides, it would be proper to recapitulate here the wordings of the Police Regulation No. 241-D, which are as under;-

"241-D. The action to be taken under head (2) by police officers regarding cases of misconduct which may come to their notice in the course of investigations is laid down in police regulation 737. Again the Jail Manual provides that if any wound or mark of recent injury is observed at the medical inspection on the admissions of an under-trial prisoner, the prisoner shall be questioned regarding it, and if be attributes it to violent treatment while under arrest, the matter is to be immediately reported to the District Magistrate or in his absence to the senior Magistrate present at headquarters. Cases which come to the notice of Magistrates in the courts of inventions or otherwise should be brought at once to the notice of the District Magistrate. It will rest with the District Magistrate in each case reported to him by the police or by a subordinate Magistrate or otherwise to decide whether a departmental enquiry, a magisterial investigation or a trial should be held, and immediately on receipt of information of a case he should intimate whether the police enquiry should be stopped in favour of such a magisterial investigation or trial."

In accordance with the above, when cases of misconduct of the police officers during the investigation or otherwise come to the notice of the District Magistrate, then it rests with him in each case to decide whether a departmental enquiry, a magisterial investigation or a trial should be held. Police Regulation No. 241-H provides that in case of a magisterial investigation regarding the misconduct of a police officer, what factors are required to be taken into account by the District Magistrate.

Now coming to the material portion of the order passed by the learned District Magistrate regarding conducting of the present enquiry, it is as given below;-

The question that arises is, what is a ''judicial enquiry''. ''Judicial Proceedings'' is defined in section 4(m) of the Code of Criminal Procedure as under : -

"Judicial proceeding"-"Judicial proceeding" includes any proceeding in the course of which evidence is or may be legally taken on oath."

The distinction between an administrative. Judicial or quasi judicial act turns upon the question, whether the duty of the authority concerned was to act judicially or not. This question came up before the Division Bench of the Allahabad High Court, and their Lordships in Mohammad Bux Vs. Govt. of State of Uttar Pradesh and Another, have observed in paragraph 12 of their judgment as follows;-

"On this point, I may be permitted to quote tha observations of Das, J.- Province of Bombay Vs. Kusaldas S. Advani and Others, - J. They run as follows: ''In this connection the term judicial does not necessarily mean acts of a judge or legal tribunal sitting for the determination of matters of law, but for purposes of this question, a judicial act seems to be an act done by competent authority upon consideration of facts and circumstances and imposing liability or affecting rights, and if there be a body empowered by law to enquire into facts, make estimates to impose a rate on a district, it would seem to me that the acts of such a body involving such consequences would be judicial acts.''

Their Lordships also further referred to the observations of Atkin, L.J. as he then was in - ''Rex v. Electricity Commissioners'' 1924 1 KB 171 (K) and they run as follows:-

"Whenever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority, they are subject to the controlling jurisdiction of the King''s Bench Division exercised in these writs." The above observations of Lord Atkins have become classical and were accepted as correctly laying down the law in ''Rex v. London County Council'' 1932 KB 2 5 (L), and by many other learned Judges in subsequent cases including the Supreme Court and the latest decision of their Lordships of the Judicial Committee in ''Nakhuda Ali v. M.F. Des Jayaratne'' 54 Cal WN 883 PC -M.

The conclusion to be drawn, therefore, is that the real test which destinguishes a quasi- judicial act from an administrative act is as observed by Atkin L. J''s definition, namely, the duty to act judicially. The law has been well put by Lord Hewart C.J. in ''R.V. Legislative Committee of the Church Assembly'' 1923 I KB 411 at p. 415-N that;

"In order that a body may satisfy the required test it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be super-added to that characteristic the further characteristic that the body has the duty to act judicially."

This question again came up before the Allahabad High Court in Basantsingh v. Janaksingh AIR 954 All 447 DB, wherein their Lordships have observed :-

''''The criterion for deciding whether an order is a judicial order or an administrative one is not whether the authority acts under a statute; it is as pointed out recently by Sapru, J. in - Mohammad Bux Vs. Govt. of State of Uttar Pradesh and Another, whether it is required to act judicially in passing the order or not. If it is required to act judicially, the order is judicial or quasi judicial and if it is not it is administrative."

10 In Chimansingh Balbhadrasingh v. State AIR 1951 MB 45 at p. 47, Dixit, J. wrote the order on behalf of the Court and observed as follows :-

".... There are numerous authorities to show that an inquiry into the conduct of a public official made by an executive officer even if he happens to be a Magistrate or even if he administers oath to the witnesses during the course of inquiry, is not a judicial proceeding and the office of the authority holding the inquiry would not be a Court. A reference need only be made to In re. Chotalal Mathuradas ILR 22 Bom. 936 and to Queen-Empress v. Venkata Ramanna ILR 23 Mad 223. In the latter case a preliminary inquiry was held by a Sub Divisional Magistrate at the direction of the District Magistrate into the circumstances of a complaint of bribery against an Inspector of police. In the course of the inquiry a witness made a false statement on oath before the Sub-Divisional Magistrate, held that the witness was bound to tell the truth at the inquiry and granted sanction for his prosecution u/s 193, Penal Code. In setting aside the order of the Sub Divisional Magistrate sanctioning the prosecution of the witness, the Madras High Court observed: -

Under section 197, Criminal Procedure Code, the Government or some officer empowered in that behalf by the Government can alone grant the sanction required thereby and for that purpose the Government or the officer to whom the power is deligated must in some way inform his mind as to whether or not he ought to grant sanction, but there is no provision in the Criminal Procedure Code or Penal Code indicating tow he is to do so. Unless he is authorised by some provision of law to inform his mind by holding a judicial inquiry himself or by another there is no authority in him or the person acting for him to administer an oath and the inquiry is merely a departmental inquiry. There is no such provision of law, and therefore, the inquiry before the Deputy Magistrate in the course of which the alleged offence was committed was not a judicial proceeding within section 193 Penal Code, and the petitioner cannot be convicted under that section."

Thus, looking to the order passed by the District Magistrate as aforesaid, and the law on the point as discussed above, it is quite clear that the District Magistrate had ordered a magisterial investigation, and even though, Shri Tiwari, the learned Additional District Magistrate was also empowered as a Magistrate First Class and further he had given oath to the witnesses examined before him, yet it was merely a fact finding enquiry, and the preliminary one as it was, in order to know the truth, and it was the District Magistrate who was finally to decide whether the petitioner was to be dealt with department ally or should be prosecuted in a Court, and in view of the aforesaid circumstances of the case, I am clear in my view that the enquiry which the learned Additional District Magistrate (Executive) was ordered to conduct was only a magisterial investigation and not a judicial inquiry. The ruling cited by the learned Additional District Magistrate in his order is clearly distinguishable from the facts of the present case.

As I have taken the view that the inquiry in hand before the learned Additional District Magistrate (Executive) was not a judicial one, the question of proceeding against the petitioner u/s 480 or 476 of the Code of Criminal Procedure does not arise.

In the result, therefore, this miscellaneous petition is allowed; and it is ordered that the proceedings in Misc. Cr. C. No. 42) of 1969 pending against the petitioner before the learned Additional District Magistrate (Executive), Jabalpur, are hereby quashed.