Citation Codes

Equivalent Citations

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Case Number

Criminal Revision No. 656 of 1906

Judges

Mitra
Holmwood, JJ.

Acts

rule.25. Rule discharged.

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Smart Summary

Structured Summary of the Provided Opinion

Factual and Procedural Background

This rule was obtained on 15 June 1906 challenging an order dated 19 May 1906 by Babu Nityananda Bhar, Deputy Magistrate of Jessore, which declared the 2nd party entitled to retain possession of the New Bordia hat until evicted by due course of law and restrained disturbance of that possession.

The petitioners were owners of an older establishment called the Bordia hat. They relocated this hat in April 1905 to a new site on the east bank of the Halifax canal, acquiring leases from tenants of that site. On 16 November 1905 a police report and fears of breach of the peace relating to rent collection led to proceedings under section 107, Criminal Procedure Code (Cr. P.C.), involving the petitioners and some of Kaviraj Dwarka-nath Sen's men. Those proceedings were dropped.

A subsequent police report dated 11 February 1906 led the District Magistrate of Jessore to draw up, on 2 February 1908 (sic, as printed), proceedings under section 145, Cr. P.C., making the petitioner Ern Kissore Roy the 1st party and Dwarkanath Sen the 2nd party. On 26 February 1906 the District Magistrate transferred the case to the file of Babu Nityananda Bhar, a Deputy Magistrate of the first class at the Suddar Station.

Fresh parties were added on 7 March and amended proceedings issued. On 19 May 1906 Babu Nityananda Bhar declared the 2nd party in possession, finding among other things that the 1st party had been owner of the old hat and had established the new hat, the 2nd party had begun collecting rents from Pous (December–January) previously, and that there was no apparent forcible dispossession of the 1st party.

The High Court issued an open rule on 15 June 1906 to the District Magistrate of Jessore and the 2nd party to show cause why the Deputy Magistrate's order should not be set aside.

Legal Issues Presented

Whether a District Magistrate can transfer proceedings under section 145, Cr. P.C., to a subordinate Magistrate (here, a Deputy Magistrate with first class powers), i.e., the lawfulness of the transfer made by the District Magistrate.
Whether a Deputy Magistrate of the Sudder Station (a subordinate Magistrate with first class powers appointed to act in the district and usually holding Court at headquarters) had jurisdiction to enquire into possession of property located in the Narail Sub-division under section 12(2), Cr. P.C.
Whether the addition of parties and the issue of fresh copies of proceedings by the trying Magistrate constituted the drawing up of a fresh proceeding (and thus affected the validity of the enquiry).

Arguments of the Parties

Respondent / Crown (represented by Mr. Sinha, Offg. Advocate-General, with Babu Dasarathi Sanyal)

Submitted that an inquiry under section 145, Cr. P.C., is transferable by the District Magistrate under section 52i (text as printed) and cited authorities including Satis Chandra Pandey v. Rajendra Narain Bagchi, Lalit Mohan Moitra v. Surjya Kant Acharjya, and Gurudas Nag v. Gaganendra Nath Tagore.
Argued that proceedings under section 107 stand on essentially the same footing and the power to transfer in such cases has been recognized (citing Surjya Kant Roy Chowdhury v. Emperor).
Contended that a Deputy Magistrate of the Sudder has local jurisdiction throughout the district under section 12(2), Cr. P.C., citing Sarat Chundra Roy v. Bepin Chandra Roy.
Asserted that adding parties does not necessitate a fresh proceeding; an amended proceeding or fresh copies do not make it a new proceeding, relying on Protap Narain's case and the Full Bench decision in Kristo Kamini v. Abdul Jubbar.
Characterized the matter as a criminal case for the purposes of transfer and jurisdiction rules (brief citation: "Arumuga").

Petitioners (represented by Mr. Hill, with Babu Sarat Chandra Roy Chowdhury)

Argued that section 145 is complete in itself and makes no provision for transfer; relied on distinctions in the Code about transfer provisions (references to sections 528 and 526 as printed) and criticized earlier authorities as wrongly decided.
Maintained that a Sudder Magistrate had no jurisdiction to try the matter because the land in dispute lay in the Narail Sub-division.
Contended that the Full Bench case in Kristo Kamini v. Abdul Jubbar does not cover the instant facts, because the trying Magistrate had produced what amounted to a new proceeding by drawing up fresh proceedings rather than merely adding parties.
Described the section 145 order as an injunction determining possession rather than a trial, and argued it was an inquiry/investigation that should not have been transferred in the manner done.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Satis Chandra Pandey v. Rajendra Narain Bagchi (also printed as Satis Chundra Panday)	Cited as authority that jurisdiction to make an order under sections 145 or 146 is not strictly personal to the Magistrate who initiates the proceedings (i.e., supports transfer between magistrates).	The Court treated this as a distinct controlling authority supporting the proposition that such jurisdiction is not personal to the initiating Magistrate and relied on it to uphold the practice of internal transfers by District Magistrates.
Lalit Mohan Moitra v. Surjya Kant Acharjya (also printed as Lalit Mohon Meitra v. Surjya Kant Acharjya)	Followed Satis Chandra Pandey as supporting transferability/non-personal character of jurisdiction under sec.145/146.	The Court noted this decision as following the principle in Satis Chandra Pandey and thus as confirming the existing practice.
Gurudas Nag v. Gaganendra Nath Tagore	Cited as another decision following the same principle that supports transferability/non-personal jurisdiction for sec.145/146 enquiries.	The Court cited it as part of a line of authority in this Court supporting transfer practice and declined to depart from that practice.
Surjya Kant Roy Chowdhury v. Emperor	Cited to show that cases under sec.107 stand on practically the same footing as cases under Chapter XII (sec.145 et seq.) with regard to the power to transfer.	The Court relied on this authority (and another from Allahabad) to support the view that transfer power exists for such proceedings.
Sarat Chundra Roy v. Bepin Chandra Roy	Held in a sec.107 case that a Subordinate Magistrate with first class powers appointed to act in the district and holding Court at headquarters had jurisdiction, relying on sec.12(2), Cr. P.C.	The Court applied this decision to conclude that Babu Nityananda Bhar had both personal and local jurisdiction under sec.12(2) to try the case.
Protap Narain's case	Cited to support the proposition that the addition of parties does not necessitate a fresh proceeding.	Used by counsel and treated by the Court as supporting the practice that adding parties and reissuing proceedings does not make it a new proceeding.
Kristo Kamini v. Abdul Jubbar (Full Bench)	Full Bench ruling that when parties are added no new proceeding will be necessary (i.e., amendment/addition of parties does not vitiate proceedings).	The Court relied on this Full Bench ruling to hold that the Deputy Magistrate's actions (adding parties and issuing fresh copies) did not invalidate the enquiry and were within practice.
Pandurang Govind Pujari	Held (per Jenkins, C.J.) that a proceeding under sec.145 is not a criminal case within the meaning of sec.526 and thus could not be transferred by the High Court under that section.	The Court distinguished that authority as applying to transfers under sec.526 by the High Court; here the District Magistrate had transferred the case administratively from his own file to that of a subordinate Magistrate, so Pandurang Govind Pujari did not control the present question.
Pachai Animal (Madras case)	Cited as a Madras decision following the principle in Satis Chandra Pandey.	The Court noted it as an instance where Satis Chandra Pandey was followed, adding weight to the existing practice.
King Emperor v. Munna (Allahabad Court)	Cited for the proposition that the power to transfer exists (in the context of sec.107/sec.145 analogous power).	Referenced by the Court as an additional authority from another jurisdiction supporting transfer power for such proceedings.
Arumuga (cited parenthetically)	Cited briefly as indicating the matter is a criminal case (as argued by counsel).	Mentioned by counsel; the Court did not rely on a detailed application of this authority in the judgment text as printed.

Court's Reasoning and Analysis

The Court began by summarizing the Deputy Magistrate's findings: that the 1st party had been previously in possession but the 2nd party had obtained possession by inducing tenants to attorn and were in possession at the institution of proceedings; that there was no evidence of forcible dispossession within two months of that date. The Court observed there was no reason to hold these findings erroneous and, even if they were, the Court could not interfere with them (i.e., the findings of fact were not disturbed).

The Court then addressed the two principal contentions raised by the petitioners:

On the question of transfer: The petitioners relied on Pandurang Govind Pujari to contend that proceedings under sec.145 could not be transferred by the High Court under sec.526 and by analogy that the transfer here was improper. The Court distinguished that authority because the present case did not involve a High Court transfer under sec.526; the District Magistrate had, of his own motion and for administrative purposes, transferred the matter from his own file to that of a subordinate Magistrate. Consequently, Pandurang Govind Pujari did not control the present situation.
The Court treated the line of authorities starting with Satis Chandra Pandey (and followed by Lalit Mohan Moitra, Gurudas Nag, Pachai Animal, and others) as establishing that jurisdiction to make an order under section 145 (or 146) is not personal to the Magistrate who initiates proceedings and that the practice of District Magistrates transferring such cases to subordinate Magistrates of the first class is established and acceptable. The Court stated it saw nothing wrong in that practice and found no ground to disturb it.

On the second main issue—local jurisdiction of the Deputy Magistrate—the Court relied on Sarat Chundra Roy v. Bepin Chundra Roy, which had held that a subordinate Magistrate with first class powers appointed to act in the district and holding court at headquarters has jurisdiction under section 12(2), Cr. P.C., throughout the district. Applying that principle, the Court concluded that Babu Nityananda Bhar had both personal and local jurisdiction to try the case, because he had been appointed a Magistrate with first class powers in the district and, under section 12(2), had jurisdiction and powers throughout the district.

Regarding the contention that the Deputy Magistrate drew up a fresh proceeding (which would affect validity), the Court found that in substance the Deputy Magistrate had merely added parties and issued fresh copies of the original proceedings. The Court held this was covered by the Full Bench ruling in Kristo Kamini v. Abdul Jubbar and did not amount to creating a new proceeding that would vitiate the enquiry.

The Court noted that a request to refer the question to a Full Bench was declined because it found no conflict of decision in the Court's prior authorities and did not consider it appropriate to depart from them. The Court therefore upheld the established practice and the cited authorities as controlling.

Holding and Implications

Holding: The rule is discharged. The Court dismissed the petition and refused to set aside the order of Babu Nityananda Bhar.

Implications:

The Deputy Magistrate's order declaring the 2nd party to have been in possession at the date of institution of proceedings stands; the 2nd party is entitled to retain possession until legally evicted.
The Court affirmed the practice that a District Magistrate may transfer proceedings under section 145 (and analogous proceedings under section 107) to a subordinate Magistrate of the first class, and that such jurisdiction is not strictly personal to the Magistrate who initiates proceedings.
The Court held that a Deputy Magistrate appointed with first class powers under section 12(2) has personal and local jurisdiction throughout the district to try such matters, so the presence of the land in the Narail Sub-division did not vitiate jurisdiction in the circumstances of this case.
The Court accepted that adding parties and issuing fresh copies (as the Deputy Magistrate did) does not necessarily create a fresh and invalid proceeding where the substance remains an amendment—relying on the Full Bench decision in Kristo Kamini v. Abdul Jubbar.
The Court did not regard these conclusions as creating a new principle departing from existing authority; rather, it applied and affirmed the line of prior decisions. The decision therefore had the direct effect of upholding the magistrate's order and the transfer practice rather than announcing a novel precedent.

Final short form of disposition: Rule discharged.

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Ram Kissore Roy And Others 1St Party v. Dwarka Nath Sen And Others, 2Nd Party Opposite Party.

1. This was a rule granted on the 15th of June 1906, against an order of Babu Nityananda Bhar, Deputy Magistrate of Jessore, dated the 19th of May 1906, declaring the 2nd party to be entitled to retain possession of the New Bordia hat in dispute until evicted therefrom in due course of law and forbidding all disturbance of such possession until such eviction.

2. The Petitioners were the owners of an old hat called the Bordia hat. This hat they removed, in April 1905, to a place on the east bank of a canal called the Halifax canal by purchasing and taking leases from the tenants of the new site. On the 16th of November 1905, on a police report and apprehending a breach of the peace on account of a dispute regarding collection of the rents from the hat, a proceeding under sec. 107, Cr. P.C, was drawn up making the Petitioners and some of Kaviraj Dwarka-nath Sen's men parties thereto. This was eventually dropped and on another police report, dated the 11th February 1906, the District Magistrate of Jessore drew up on the 2 let of February 1908 proceedings undersea, 115, Cr. P.C, making the Petitioner, Earn Kissore Roy 1st party and Dwarkanath Sen 2nd party thereto. On the 26th of February 1906, the learned District Magistrate transferred the case to the file of Babu Nityananda Bhar, a Deputy Magistrate of the 1st; class in charge of the Suddar Station.

3. On the 7th of March fresh parties ware added and the amended proceedings were issued to all the parties. On the 19th of May 1906, Babu Nityananda Bhar declared the 2nd party to be in possession, finding inter alia that the 1st party had been the owner of the old hat and had established the new hat, that the 2nd party began to collect rents from Pous (December-January) last and that the 1st party did not appear to have been forcibly dispossessed.

4. On the 15th of June 1906 the High Court issued an open rule on the District Magistrate of Jessore and on the 2nd party to show cause why the said order should not be set aside.

5. Mr. Sinha (Offg. Advocate-General with him Babu Dasarathi Sanyal) showed cause: (1) An inquiry under sec. 145, Cr. P.C, is transferable by the District Magistrate under sec. 52i; see Satis Chandra Pandey v. Rajendra Narain Bagchi (), Lalit Mohan Moitra v. Surjya Kant Acharjya (2) and Gurudas Nag v. Gaganenira Nath Tagore (3). It is a Criminal case, Arumuga (4). Oases under sec. 107, Cr. P.C, stand on practically the same footing and with regard to them the power for transfer exists, Surjya Kant Roy Chowdhury v. Emperor (5).

6. (2). A Deputy Magistrate of the Sudder has local jurisdiction throughout the District, sec. 12 (2), Cr. P.C This was decided in a case under sec. 107, Cr. P.C, Sarat Chundra Roy v. Bepin Chandra Roy (6). Competent, in sec. 528, means competent with regard to the class of cases; it does not refer to local jurisdiction.

7. (3). As to the addition of parties, a fresh proceeding is not necessary, nor would an amended proceeding on a separate piece of paper make it a fresh proceeding. Protap Narain's case (7) is abs olute, vide the Fall Bench case of Kristo Kamini v. Abdul Jubbar (8).

8. Mr. Hill (with him Babu Sarat Chandra Roy Chowdkury) in support of the Rule.

9. (1). See. 145 is complete [in itself and makes no provision for transfer. In sec. 523 ‘competent’ refers to powers not merely conferred on different classes of Magistrate but also as exercised within certain limits. “What the Legislature declared to be no criminal case would not be so, because two Judges of the Madras High Court chose to say it was.

Mitra, J.:— Your contention is, it is not really a criminal case and does not come within sec. 192, Cr. P.C

11. Mr. Hill.— It is an injunction declaring that A or B is in possession and is not to be disturbed. It is not a trial but an inquiry or investigation. Sec. 528 occurs in Ch. XLV which relates to the transfer of criminal cases the High Court can transfer cases to a Magistrate who does not have local jurisdiction. There is an express provision for that (“sec. 526). Satis Chandra Panday () and Gurudas Nag v. Gaganendra Nath Tagora (), wrongly decided and contrary to the express language of the Code.

12. (2). The Magistrate of the Sudder had no jurisdiction to make the inquiry as the land is situated in the Sub-division of Narail.

13. (3). The F.B case in Kristo Kamini v. Abdul Jubbar () only says that when parties are added no new proceeding will be necessary. Here the trying Magistrate has drawn up a new proceeding

14. Upon the Magistrate's own finding possession was taken by the 2nd party within two months of the initial order but he does not decide in favour of the 1st party because there is nothing to show that dispossession was forcible. The proviso to cl. (4) applies. I go further and say that the date of the initial order should be taken to be the date of the 107 proceeding.

15. With regard to the jurisdiction of Babu Nityananda Bhar, refers to the Calcutta Gazztte of 20-12-03, Part I, No. 5015 A, “posted to the head quarters”.

16. The Judgment of the Court was as follows:—

This is a rule obtained by the first party to a proceeding under sec. 145 of the Code of Criminal Procedure for the purpose of avoiding anorder of Babu.” Nitya Nanda Bhar, a Deputy Magistrate with first class powers, at Jessore.

17. Babu Nitya Nanda Bhar has declared the second party to have been, in possession at the date of the institution of the proceedings. His findings are that the first party were previously in possession but the second, party were the owners of the land and gradually obtained possession by inducing the tenants in occupation to attorn to them. Thus the second party were in possession at the date of the institution of the proceedings and that the first party had not been forcibly dispossessed within two months of that date. One of the grounds urged before us has reference to these findings but there is no reason for holding that they are erroneous and, even if they were, we could not interfere with them.

18. The main points relied on by Mr. Hill for the Petitioners before us are:— (1) that the initial proceeding having been drawn up by the District Magistrate, he ought to have held the enquiry and passed final order and that the transfer of the case to Babu Nityananda Bhar was without jurisdiction; and (2) Babu Nityananda Bhar having been a Depury Magistrate at the Sadder Station could not have held an enquiry as to possession of property in the Narail Sub-division.

19. The first contention has been attempted to be supported by a reference to the case of Pandurang Govind Pujari (9). Jenkins, C.J, held in that case which was one for the transfer by the High Court under sec. 526, Criminal Procedure Code, of a proceeding under sec. 145, that a proceeding under sec. 145 is not a criminal case within the meaning of sec 526 and that a case under that section cannot be transferred by the High Court from one Magistrate's Court to another under that section. The case before us is entirely different. We have not here to deal with an application under sec. 526. The District Magistrate of Jessore transferred the case of his own motion from his own file to that of a Subordinate Magisirate for purely administrative purposes.

20. The case of Satis Chundra Panday v. Rajendra Narain Bagchi () is a distinct authority in this Court for the proposition that the jurisdiction, to make an order under sec. 145 or sec. 146 is not personal to the Magistrate who initiates the proceedings. This decision has been followed in Madras in the case of Pachai Animal (10) and in this Court in Lalit Mohon Meitra v. Surjya Kant Acharjya () and Gurudas Nag v. Gaganendra Nath Tagore (). The practice of transferring cases under Chapter XII of the-Code by District Magistrates to Magistrates of the 1st class subordinate to him is common and we see nothing wrong in it. We do not find any ground for disturbing the practise and the decisions of this and the Madras Court.

21. We have been asked to refer the question to a Full Bench, but there in no conflict of decision in this Court and we are not disposed to differ from the opinion expressed in the cases cited above, though we may not agree in all the reasons given by the learned Judges in them. As regards the power of a District Magistrate to transfer such cases to a Subordinate Magistrate, cases under sec 107 stand on practically the same footing as cases under Chapter XII and this Court in Surjya Kant Roy Chowdhury v. Emperor () and the Allahabad Court in King Emperor v. Munna (11) have held that the power exists.

22. The second point raises a question which has been settled by the decision of this Court in Sarat Chundra Roy v. Bepin Chundra Roy (). That was a case under sec. 107, Cr. P. Code, and the District Magistrate transferred it for trial to a Subordinate Magistrate with first class powers appointed to act in the District and holding his Court at the head quarters of the District.

23. It was held that the Su bordinate Magistrate had jurisdiction to try the case and sec. 12, sub-sec. (2) of the Code was relied on as giving such jurisdiction. Babu Nityananda Bhar was appointed a Magistrate with first class powers in the district and though he generally held his Court at the head-quarters he had under sec. 12, sut-sec. (2) of the Code jurisdiction and powers of a Magistrate of the first class throughout the district. He had thus personal as well as local jurisdiction. As to the objection that the Deputy Magistrate dropped the original proceedings and drew up fresh ones it would appear that all he really did was to add parties and issue fresh copies of the original proceedings. This is covered by the Full Bench ruling in Kristo Kamini v. Abdul Jabbar ().

24. The grounds urged are not therefore sustainable and we accordingly discharge the rule.

25. Rule discharged.

Ram Kissore Roy And Others 1St Party v. Dwarka Nath Sen And Others, 2Nd Party Opposite Party.

Structured Summary of the Provided Opinion

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Respondent / Crown (represented by Mr. Sinha, Offg. Advocate-General, with Babu Dasarathi Sanyal)

Petitioners (represented by Mr. Hill, with Babu Sarat Chandra Roy Chowdhury)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ram Kissore Roy And Others 1St Party v. Dwarka Nath Sen And Others, 2Nd Party Opposite Party.

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