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Ramchandra Nagoji Kadam v. State Of Maharashtra

Bombay High Court

Oct 14, 1965

Judgment

Subsequent
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Structured Summary of the Opinion

Factual and Procedural Background

This revision application arises from proceedings under Section 145 of the Code of Criminal Procedure (CrPC). The Sub-Divisional Magistrate (SDM), Chiplun, made a finding that Party No. 1 was in possession at the material time and passed consequential orders under Section 145. Against that order Party No. 2 (the petitioner) preferred a revision application to the Sessions Court, Ratnagiri. The learned Sessions Judge held that, in view of a decision of this Court (Dr. Lallubhai Bhatt v. State of Bombay, 59 Bom LR 942 : AIR 1958 Bom 276), he had no jurisdiction to entertain the revision application. The petitioner then filed the present revision application challenging that conclusion.

Legal Issues Presented

Whether a Sub-Divisional Magistrate acting under Section 145 of the CrPC is an "inferior Criminal Court" within the meaning of Section 435(1) of the CrPC.
Whether the Sessions Judge had jurisdiction to entertain the petitioner's revision application under the statutory scheme as affected by amendments (notably Bombay Act 23 of 1951 and Bombay Act 39 of 1955).

Arguments of the Parties

Petitioner's Arguments (Mr. Kode for Party No. 2)

Contended that the Sessions Judge's view was incorrect because the Division Bench decision in Dr. Lallubhai Bhatt left open the material question whether proceedings under Section 145 are proceedings "entertained by a Criminal Court."
Argued that the material question is whether an SDM acting under Section 145 can be regarded as an "inferior Criminal Court" under Section 435(1).
Relied on Chapter II heading of the CrPC ("of the Constitution of Criminal Courts and Offices") and Sections 6-A (and the phrase "Courts of Magistrate"), arguing that the wording indicates Sub-Divisional Magistrates are included among "Courts of Magistrates" and therefore are inferior Criminal Courts.
Referred to Sections 17 and 17-A and argued from the terminology used that Sub-Divisional Magistrates should fall within the class of Magistrates that are "Courts of Magistrates."
Relied on Section 4(m) definition of "judicial proceeding" and the fact that Section 145 proceedings permit recording of evidence on oath to support the view that an SDM under Section 145 functions as a Criminal Court.
Relied on In re Ramanath (AIR 1953 Mad 953) and the Privy Council observation that terms "Court" and "Magistrate" are often used as convertible terms.

Respondent / State's Arguments (Mr. Gambhirwala for the State)

Relied on Vedappan Servai v. Perianan Servai (ILR 52 Mad 69 : AIR 1928 Mad 1108) which observes that Section 6 means magistrates are Criminal Courts only when they act judicially, and that magistrates may sometimes act in an executive or administrative capacity.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Dr. Lallubhai Bhatt v. State of Bombay, 59 Bom LR 942 : AIR 1958 Bom 276	Was relied upon by the Sessions Judge to conclude he had no jurisdiction; the Division Bench in that case left open the specific question whether proceedings under Section 145 are proceedings entertained by a Criminal Court.	The court noted the Division Bench had left the issue open, permitted argument on the point, and ultimately held that the Sessions Judge's reliance on the decision did not make his conclusion incorrect because statutory construction and subsequent amendments resolved the issue against the petitioner.
In re Ramanath, AIR 1953 Mad 953	Relied on for paras that referred to the Privy Council decision about the terms "Court" and "Magistrate" being generally convertible.	The court held that those observations were not helpful in the present case because intervening statutory amendments (Bombay Acts) changed the legal landscape.
Clarke v. Brojendra Kishore Roy, (1912) ILR 39 Cal 953 (PC)	Privy Council observation: "For the sake of brevity the Code uses the term 'Court' and 'Magistrate' generally if not always, as convertible terms."	The court considered the observation but concluded that later amendments (Bombay Act 23 of 1951 and Bombay Act 39 of 1955) limited its applicability to the present legal question.
Vedappan Servai v. Perianan Servai, ILR 52 Mad 69 : AIR 1928 Mad 1108	Principle that Section 6 means magistrates are Criminal Courts when they act judicially; magistrates may sometimes act in an executive capacity and not as a Court.	The court expressly agreed with this principle and used it to support the conclusion that the status of a magistrate depends on the functions performed; where acting in an executive capacity, the magistrate is not an inferior Criminal Court under Section 435(1).
Criminal Revision Application No. 1338 of 1954 (Bom), order dated 11-2-1955 (Justice Dixit)	Authority taking a similar view that an SDM acting under Section 145 is not an inferior Criminal Court (as indicated by the court).	The court noted Justice Dixit's similar conclusion and observed that lack of reference to Section 438-A in that decision would not affect the result here.

Court's Reasoning and Analysis

The court proceeded by statutory construction, focusing on textual differences introduced by key legislative amendments and on the functional distinction between judicial and executive roles of magistrates. The analysis proceeded in the following steps, consistent with the reasoning found in the opinion:

Chapter headings and section wording:
- The heading of Chapter II of the CrPC ("of the Constitution of Criminal Courts and Offices") was acknowledged, but the court emphasized that headings cannot override the specific text of statutory provisions.
Effect of Bombay Act 23 of 1951:
- After the amendment effected by Bombay Act 23 of 1951 (which separated judiciary and executive), Section 6 indicates there are only two classes of Courts: Courts of Sessions and Courts of Magistrates.
- The court stressed that Section 6-A uses the phrase "classes of Magistrates" rather than "Courts of Magistrates," indicating that S. 6-A classifies magistrates but does not itself constitute each magistrate as an inferior Criminal Court.
Distinction in terminology — Sections 17 and 17-A:
- Section 17 uses the expression "Judicial Magistrates" while Section 17-A uses "Executive Magistrates." The court read this as a legislative distinction: judicial magistrates preside over inferior Criminal Courts, while executive magistrates discharge executive functions to which they are specially assigned.
- Because Section 17-A explicitly subordinates Executive Magistrates to the District Magistrate, the court treated Executive Magistrates as a separate class not automatically equivalent to inferior Criminal Courts under Section 435(1).
Construction of Section 17-B:
- Section 17-B speaks of "Courts of Magistrates (including Courts of Presidency Magistrates)." The court reasoned that if "Courts of Magistrates" covered all Magistrates including Executive Magistrates, the qualifier "including Courts of Presidency Magistrates" would be redundant. Avoiding such redundancy, the court read "Courts of Magistrates" as referring to Courts of Judicial Magistrates only.
Analysis of Section 435 and its amendments:
- Sub-section (2) of Section 435 (as noted in the opinion) empowers the District Magistrate or a Sub-Divisional Magistrate specially empowered by the State Government to examine proceedings before subordinate Executive Magistrates — thus conferring specific revisional power on those executive officers where so empowered.
- Prior to Bombay Act 23 of 1951, subsection (1) included a reference to "District Magistrate," but that reference was removed and subsection (2) added — indicating that Executive Magistrates are treated under a separate scheme rather than being equated to inferior Criminal Courts in subsection (1).
- Sub-section (4) of Section 435 (added by Bombay Act 39 of 1955) expressly empowers the High Court to call for records and examine correctness of orders passed under Sections 118, 122 and 143 to 145. The court reasoned that if "any inferior Criminal Court" in subsection (1) had included Executive Magistrates acting under those sections, subsection (4) would be unnecessary and redundant. The addition of subsection (4) thus confirms Executive Magistrates were not intended to be treated as "inferior Criminal Courts" under subsection (1).
- Section 435-A (added by Bombay Act 39 of 1955) must be read with subsection (2) — the court explained that subsection (2) empowers the District Magistrate and specially empowered SDMs to direct further enquiry in certain matters, but where Executive Magistrates act under the specified sections, a referral to the High Court is required if revision is necessary.
Functional test and authorities:
- The court adopted the functional approach: whether a magistrate is a "Court" depends on the functions being carried out at the time (judicial versus executive). The court cited Vedappan Servai v. Perianan Servai in support of this functional approach and agreed with its reasoning.
- The court rejected the petitioner's reliance on the convertible-terms observation in older authorities (including Clarke v. Brojendra Kishore Roy and In re Ramanath) because intervening statutory amendments materially altered the rule's applicability.
On procedural aspects, evidence and "judicial proceeding":
- The court acknowledged that proceedings under Section 145 may involve recording evidence on oath and may be "judicial proceedings" for some purposes under Section 4(m). However, it held that the characterization of a particular proceeding as a "judicial proceeding" for certain statutory purposes does not automatically convert the officer conducting those proceedings into an "inferior Criminal Court" under Section 435(1).

Holding and Implications

Holding: It is held that a Sub-Divisional Magistrate acting under Section 145 of the CrPC is not an "inferior Criminal Court" as contemplated by Section 435(1) of the CrPC.

Implications and direct effects:

The Sessions Judge's conclusion that he had no jurisdiction to entertain the revision application was held to be correct.
The court discharged the rule and vacated the stay that had been granted.
The petitioner (Party No. 2) was directed that, if so advised, he may apply to the District Magistrate for revision of the order challenged before the Sessions Judge; the District Magistrate is to dispose of that application on merits.
The court recorded that the delay occasioned was due to a bona fide pursuit of an incorrect remedy and therefore the delay should not prejudice the petitioner; the District Magistrate shall consider the matter on merits despite the delay.
The application (the present revision) was dismissed.

The opinion does not purport to announce a broad new principle beyond the statutory construction and interpretation applied; the decision's immediate effect is procedural and dispositive as described above.

IJ/VPP/G.G.M

Show all summary ...

1. This revision application arises out of proceedings started under section 145 of the Cr PC. Sub-Divisional Magistrate, Chiplun, found that Party No. 1 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. Dr. Lallubhai Bhatt v. State of Bombay, 59 Bom LR 942 : (AIR 1958 Bom 276) 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 abovementioned case clearly leaves the material question open. According to Mr. Kode, the material question in this case is whether a Sub-Divisional Magistrate acting under Section 145 of the Cr PC can be said to be an interior Criminal Court mentioned in Section 435(1) of the Cr PC. In the above-mentioned reported decision the learned Chief Justice in his judgment after referring to the question as to whether a proceeding under Section 145 of the Cr PC 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 under Section 145 of the Cr PC is an inferior Criminal Court contemplated by Section 435(1) of the Cr PC. Mr. Kode refers to the heading of chapter II of Code of Criminal Procedure, which is: ‘of the Constitution of Criminal Courts and Offices’. He then refers to Ss. 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” are 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, S. 6 makes it quite clear that after the amendment by Bombay Act 23 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 S. 6-A does not use the expression ‘Courts of Magistrates’; it uses the expression ‘classes of Magistrates’. In my opinion, S. 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 Ss. 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 S. 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 under S. 13 or S. 14 shall be subordinate to the District Magistrate. The wording of S. 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 S. 435(1) and Executive Magistrates who are assigned some special executive work by some specific provision in the Code of Criminal Procedure.

2. Reference was made to S. 17B also. Mr. Kode strongly relies on the expression ‘Courts of Magistrates’ and contends that this expression would necessarily include even ‘Executive Magistrates’. I am unable to accept this contention also. The expression used in S. 17B is ‘Courts of Magistrates (including Courts of Presidency Magistrates)’. If Mr. Kode's contention that the expression ‘Courts of Magistrates’ covers all Magistrates including even the Executive Magistrates is correct, the further expression ‘including Courts of Presidency Magistrates’ would be redundant. It is a well-known principle of construction that a statute must be so construed that there is no occasion to attribute redundance or superfluity to the Legislature. In view of the wording of S. 17-B, it is, in my opinion, clear that the expression ‘Courts of Magistrates’ refers only to Courts of Judicial Magistrates, it does not include Executive Magistrates. This is made clear by adding the expression ‘including Courts of Presidency Magistrates’.

3. The next material section is S. 435. As pointed out in 59 Bom LR 942 : (AIR 1958 Bom 276), sub-s. (2) of S. 435 authorises the District Magistrate or a Sub-Divisional Magistrate empowered by the State Government to examine the proceedings before any Subordinate Executive Magistrate. In other words, that sub-section confers revisional powers on the District Magistrate or a Sub-Divisional Magistrate specially empowered. It is also important to note that prior to the amendment brought about by Bombay Act 23 of 1951, sub-s. (1) of S. 435 included the expression ‘District Magistrate’ also, but by the said amending Act, that expression is removed and sub-s. (2) is added. That also makes it quite clear that Executive Magistrates are treated separately, they are not treated as Criminal Courts. What is more important is sub-s. (4) of S. 435. This sub-section was added by Bombay Act 39 of 1955, which came into force on 2-1-1956. If there was any doubt, that is completely removed by the addition of sub-s. (4), which empowers the High Court to call for the record and examine the correctness or propriety of the orders passed under Sections 118, 122 and Sections 143 to 145 of Cr PC. If, as Mr. Kode contends, the expression ‘any inferior Criminal Court’ used in sub-s. (1) of S. 435 included even the Executive Magistrates acting under Sections 118, 122 and 143 to 145, sub-s. (4) would be redundant. The very fact that the Legislature thought it necessary to add sub-section (4) to Section 435 indicates that prior to the passing of Bombay Act 39 of 1955, High Court aid not have under S. 435(1) the power mentioned in sub-section (4) of S. 435. Mr. Kode referred to S. 435-A, which was added by Bombay Act 39 of 1955. This section must be read with sub-s. (2) of S. 435. S. 435(2) empowers the Dist. Magistrate and specially empowered Sub-Divisional Magistrates to direct further enquiry in some matters, but in other matters, i.e where Executive Magistrates act under Sections 118, 122 and 143 to 145, they are required to refer the matter to the High Court, if they find that the order under any of the above mentioned sections, which comes up before them for revision, is not correct and should be reversed or altered. S. 438-A would have no bearing on the question that arises before me.

4. For reasons indicated above, I am of the view that a Sub-Divisional Magistrate acting under Section 145 of the Cr PC, is not an inferior Criminal Court as contemplated by Section 435(1) of the Cr PC. Such a proceeding cannot be said to be a proceeding entertained by a Criminal Court.

5. I may mention here that Justice Dixit has taken a similar view in Criminal Revn. Appln. No. 1338 of 1954 dated 11-2-1955 (Bom). Mr. Kode points out that Justice Dixit has not referred to S. 438-A. As already stated, that however would not make any difference.

6. Mr. Kode referred to In re, Ramanath, AIR 1953 Mad 953. Reliance is placed on paras 5 and 6 of the judgment. The learned Judge refers to the Privy Council decision viz. Clarke v. Brojendra Kishore Roy, (1912) ILR 39 Cal 953 (PC). The observations of the Privy Council relied upon are:

“For the sake of brevity the Code uses the term ‘Court’ and ‘Magistrate’ generally if not always, as convertible terms.”

7. These observations would not help the present petitioner in view of the several amendments brought about by Bombay Act 23 of 1951 and Bombay Act 39 of 1955. Bombay Act 23 of 1951 brought about separation of judiciary and executive, hence the amendments brought about by that Act would have a material bearing.

8. Mr. Gambhirwala for the State refers to Vedappan Servai v. Perianan Servai, ILR 52 Mad 69 : (AIR 1928 Mad 1108). Reliance is placed on the observations at p. 72. After referring to Section 6 of the Cr PC, 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.”

9. 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.

10. Mr. Kode referred to the definition of “judicial proceeding” in Section 4(m) of the Cr PC. He also relies on the fact that under Section 145 of the Cr PC, a Magistrate is entitled to record evidence on oath. This, according to Mr. Kode, indicates that a Magistrate acting under S. 145 is also a Criminal Court. What goes on before a Magistrate under 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 the Cr PC. 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.

11. 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. The petitioner may if so advised apply to the District Magistrate for revision of the order which was challenged before the learned Sessions Judge and the District Magistrate shall dispose of the application on merits. The delay is occasioned because of a wrong remedy pursued bona fide by the petitioner on account of a mistaken view of law. Hence this delay need not come in the way of the petitioner. The District Magistrate shall consider the matter on merits.