Aveeam Das Mochi v. Abdul Rahim Opposite Party.

This is a rule to show cause why an order of a Presidency Magistrate passed under Act XIII of 1859 should not be get aside and the case retried. The order is under sec. 3, directing the Defendant to give a recognizance in the sum of Rs. 50 to return to his work. The Petitioner is a durzi who, it is said, entered into a stamped agreement to work for the opposite party. He left him to work for another employer, who gave him higher pay. The opposite party accordingly complained against him under sec. 2 of the Act. The Magistrate under the first clause of sec. 2 ordered him to return to his work and under sec. 3 directed him to execute the recognizance mentioned above.

The learned pleader who appears for the Petitioner urges (1) that the evidence has not been properly recorded, and (2) that the Magistrate has written no judgment. He, however, has not been able to show us any section of Act XIII of 1859 or of the Criminal Procedure Code prescribing how evidence in a case of this nature should be recorded or requiring a judgment to be written. He cited two cases of Queen-Empress v. Indarjit*, in the former of which it is ruled that enquiries under sec. 2 of Act XIII of 1859 cannot be made summarily while in the latter it is held that offences under sec. 2 of Act XIII of 1859 can be tried summarily. These cases are therefore in direct conflict. The former of them while laying down that such cases cannot be tried summarily does not explain how they are to be tried except that, it is said, they should be conducted “with care and patience.” The latter is no guide to us in this rule as it applies to Mofussil Magistrates and not to a Presidency Magistrate. We are accordingly unable to accede to the learned pleader's contention that the Magistrate was bound to frame his record in this case in accordance with the provisions of sec. 370, Criminal Procedure Code.

Sub-sec. (3) of sec. 2 of the Code of Criminal Procedure prescribes that “the provisions of this Code shall apply to all proceedings instituted after the commencement of this Code.” This must mean criminal proceedings; otherwise, the Code would be applicable to all civil proceedings which cannot be. Now, is a proceeding under the first clause of sec. 2 and under sec. 3, Act XIII of 1859, a criminal proceeding? It may be that an order passed under the second clause of sec. 2 of the Act by which a workman may be imprisoned for three months is a criminal proceeding, but it seems doubtful if the order in this case which is one not under the 2nd clause of sec. 2 can properly be so called.

Further, the provisions of sec. 370 appear inapplicable to a case of this nature, (1) because no offence has been committed and (2) because there is no accused.

Finally there would appear to us to be no merits in the applicant's case. The order of the Magistrate shows that the complainant and one witness were examined. They proved the execution of the agreement by the Petitioner. It is not denied that he has broken this contract or that he is a workman to whom the Act is applicable, it would accordingly seem that he is liable to be called upon under sec. 3 to execute a recognizance and, we understand, he has executed the recognizance required of him.

In these circumstances it seems to us that this is not a case in which it is necessary for us to exercise our discretionary power of revision. We discharge this rule.

H.P.C

Rule discharged.