Chatrapati Shivaji Co-Operative Housing Society Ltd. v. The State Of Maharashtra

Patel, J.:— [His Lordship after stating the facts, proceeded.] Mr. Gambhirwala contended that a revisional application does not lie against an order under s. 133 of the Criminal Procedure Code as held in Banubai Bandu Karale v. Fulabai Mangaldas Shah . 1962 Criminal Revision Application No. 714 of 1962, decided Palekar J., on November 26, 1962 Unrep.. by Mr. Justice 588 5942 by the late Chief Justice Chainani and Duru Lachiram v. Ramchand . 1964 Criminal Revision Application No. 687 of 1964, decided by Naik J., on December 16, 1964 Unrep.. by Mr. Justice Naik. This important question, therefore, must first be considered.

2. Before we go to the authorities we would like to consider the question on the provisions of the Criminal Procedure Code as amended by the State of Bombay. The amendment followed in the wake of the decision of several State Governments to separate the judiciary from the executive. Originally there was no such separation of powers and very often functions executive and judicial were mixed up and so were the several authorities discharging these functions. As a result of the separation of these two functions certain provisions of the Criminal Procedure Code relating to the appointment of Magistrates, their subordination and their functions that they had to exercise came to be amended. Throughout this judgment we will refer to the sections of the Criminal Procedure Code only as amended by the State Government by amending Acts XXIII of 1951, VIII of 1954 and XXXIX of 1955. The main amending Act, however, is the first Act. Section 6 divides all Criminal Courts into two classes: First: Courts of Sessions and Second: Court of Magistrates. As a consequence s. 6A became necessary. It provides for two classes of Magistrates, one Judicial Magistrates and second Executive Magistrates. The Judicial Magistrates are divided into five classes, they are: (1) Presidency Magistrates, (2) Magistrates of the First Class, (3) Magistrates of the Second Class, (4) Magistrates of the Third Class, and (5) Special Judicial Magistrates. The Executive Magistrates falling under the second head are again divided into five classes, they being (1) District Magistrates, (2) Sub-Divisional Magistrates, (3) Taluka Magistrates, (4) Presidency Magistrates specially empowered by the State Government, and (5) Special Executive Magistrates. Sections which relate to the appointment of different kinds of officers need not be referred to.

3. Section 17, sub-s. (1) relates to subordination of Judicial Magistracy and it provides that all Judicial Magistrates appointed under ss. 12 and 14 and all Benches constituted under s. 15 shall be subordinate to the Sessions Judge… The counter-part thereof is s. 17A and relates to the Executive Magistrates. It provides s. [17A(1)]: All Executive Magistrates appointed under s. 13 or 14 shall be subordinate to the District Magistrate; and every Taluka Magistrate shall also be subordinate to the Sub-Divisional Magistrate; subject, however, to the general control of the District Magistrate. Section 17B provides for general subordination of various Courts to the High Court. It says that the Courts of Sessions and Courts of Magistrates (including Courts of Presidency Magistrates) shall be Criminal Courts inferior to the High Court and Courts of Magistrates outside Greater Bombay shall be Criminal Courts inferior to the Court of Sessions.

4. The power of revision by the High Court of any order passed by an inferior Criminal Court is contained in s. 435 read with s. 439. Section 435(1) relates to the powers of the High Court and Sessions Court and similarly sub-s. (2) relates to the powers of the District Magistrate, and Sub-Divisional Magistrate for similar purposes. Sub-section (1) enables the High Court or the Sessions Judge, except the Sessions Judge of Greater Bombay, to call for and examine the record of any proceedings before any inferior Court situated within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order. The rest of the section is not necessary for our present purpose. Sub-section (4) enables the High Court to call for and examine the record of any proceeding in respect of an order made under ss. 118, 122, 143, 144 or 145, notwithstanding the fact that such proceeding was before an Executive Magistrate or the Commissioner of Police as the case may be. Sections 436 and 437 need not be referred to.

5. Section 438 enables the Sessions Judge, other than the Sessions Judge of the Court of Sessions for Greater Bombay, to refer the matter to the High Court if he thinks fit on examining the record of a case under s. 435 or otherwise. Section 438A gives similar powers to the District Magistrate to make a reference to the High Court in respect of orders made under ss. 118, 122, 143, 144 or 145. Sub-section (2) gives the District Magistrates all powers of an Appellate Court in respect of orders made in proceedings other than under ss. 118, 122, 143, 144 or 145. The rest of the sub-sections are not material for the present purpose. From the provisions above-referred to it is obvious that the Legislature even at the time of amendment of the Code intended to divide all Courts into two classes, viz. Courts of Sessions and Courts of Magistrates, and all Magistrates into two classes, i.e Judicial Magistrates and Executive Magistrates. Section 17, makes Judicial Magistrates subordinate to the Courts of Sessions, and enables the Sessions Judge to make rules or give special orders consistent with the Code as to the distribution of business among such Magistrates and Benches. Similarly, s. 17A gives similar powers to the District Magistrate for similar purposes. Section 17B, however, is a general section, which defines subordination of various Courts to the High Court and it is not limited in its ambit.

6. Section 17B is very widely worded and makes the Courts of Sessions and the Courts of Magistrates, Criminal Courts inferior to the High Court. It similarly provides that the Courts of Magistrates outside Greater Bombay shall be Criminal Courts inferior to the Court of Sessions. One thing which is very apparent is that this section even after the separation of the judiciary from the executive does not limit its application only to the Judicial Magistrates but to the Courts of all Magistrates. The words “Courts of Magistrates” are general words applicable to all Magistrates who exercise judicial functions as Courts whether they be judicial or executive. In a way it is true that the general words “Courts of Magistrates” may include the “Courts of Presidency Magistrates” but it does not follow that by merely adding an explanation “including Presidency Magistrates” in the brackets the Legislature could be said to have intended to limit the words “Courts of Magistrates” to Courts of Judicial Magistrates of the First Class, Magistrates of the Second Class, Magistrates of the Third Class and the Special Magistrates. Mr. Gambhirwalla relied upon the bracketed words “including the Courts of Presidency Magistrates” and argued that this must suggest that the words “Courts of Magistrates” could only mean Courts of Judicial Magistrates, but we are not impressed by this argument. In the first place nothing prevented the Legislature from saying “Courts of Judicial Magistrates”. Without the bracketed words it would have been possible to contend that “Courts of Magistrates” would only mean Courts of Magistrates of First, Second and Third Class and other Magistrates since s. 6A puts Presidency Magistrates in a separate class. In this connection it must be noticed that the subordination of officers as such has been provided for by ss. 17 and 17A for administrative purposes. Section 17B has a wider import and it is intended to lay down that all Courts under the Code are inferior to the High Court and Sessions Courts for other purposes of the Code. To hold that the words “Courts of Magistrates” must mean only four categories of Magistrates under the heading “Judicial Magistrates” defined in s. 6A would require us to add the word ‘Judicial’ between the words ‘of and Magistrates’ and again similar word between the words ‘of and Magistrate’ appearing in the second part of that sub-section.

7. Under the Criminal Procedure Code even Magistrates who are known as Executive Magistrates may discharge judicial functions and it appears to us that the purpose of s. 17B was to provide that all Courts of Magistrates which exercise judicial functions and Courts of Sessions shall be Criminal Courts inferior to the High Court and similarly they shall be Criminal Courts inferior to the Courts of Sessions. If one has regard to the elaborate provisions that are made regarding an enquiry under s. 133 to s. 140 there cannot be any doubt that though the powers in this connection are exercisable by a District Magistrate or a Sub-Divisional Magistrate, the powers are judicial and that he acts as a Court. This conclusion is supported by the decision in State of Uttar Pradesh v. Kaushailiya . [1964] A.I.R S.C 416.. The case arose out of an order made by a City Magistrate under s. 20 of the Suppression of Immoral Traffic in Women and Girls Act. The City Magistrate of Kanpur issued a notice under s. 20(1) of that Act to show cause why the respondents should not be required to remove themselves from the place where they were residing and be prohibited from re-entering them. After showing cause, of which the Magistrate was not satisfied, he made the final orders. While dealing with the reasonableness of the provisions Mr. Justice Subba Rao speaking on behalf of the Court observed (p. 421):

“…The fact that the enquiry does not relate to an ‘offence’ is not decisive of the question whether the Magistrate is functioning as a court. There are many proceedings under the Code of Criminal Procedure, such as those under ss. 133, 144, 145, and 488 which do not deal with offences but still it ??? suggested that a Magistrate in making an enquiry in respect of matters thereunder is not ??? a court. We, therefore, hold that in the circumstances the Magistrate must be held ??? as a court. If the Magistrate is acting as a court, as we have held he is, it is ??? he is subject to the revisional jurisdiction conferred under ss. 435 and 439 of ??? of Criminal Procedure.”

8. Mr. Gambhirwalla ??? upon the decisions to which reference has been made. Mr. Justice Palekar considered this question in Banubai Bandu Karale v. Fulabai Mangaldas Shah . 1957 59 Bom. L.R 942.. In that case a Sub-Divisional Magistrate made an order against the petitioner under s. 133 of the Criminal Procedure Code. The learned Judge held that the Magistrate had exceeded the powers given to him under s. 133 of the Criminal Procedure Code, but further held that he could not interfere with this order in his revisional jurisdiction. The learned Judge took this view on the ground that s. 435, sub-s. (4) limited the powers of the High Court to the orders made by the Executive Magistrates only under ss. 118, 122, 143, 144 or 145, thus applying the rule expressio unius est exclusio alterius. This rule is, however, not of universal application and has to be applied with caution. Maxwell in his Interpretation of Statutes (9th ed., at p. 318) observes:

“Provisions sometimes found in statutes enacting imperfectly or for particular cases only that which was already and more widely the law have occasionally furnished ground for the contention that an intention to alter the general law was to be inferred from the partial or limited enactment, resting on the maxim expression units est exclusion alterius. But that maxim is inapplicable in such cases. The only inference which a court can draw from such superfluous provisions (which generally find a place in Acts to meet unfounded objections and idle doubts), is that the Legislature was either ignorant or unmindful of the real state of the law, or that it acted under the influence of excessive caution.”

9. It is possible to say that the power exercised under ss. 118, 122, 143, 144 or 145 by an Executive Magistrate though judicial is a power exercisable by the Government whose responsibility it is to keep the peace. One may call it the exercise of the Stately function as such, and therefore, it may have been thought necessary to give jurisdiction to the High Court ex majori oautela. The two other decisions merely purport to follow the decision of Mr. Justice Palekar. For the reasons stated by us we, with respect, disagree with the view taken by Mr. Justice Palekar and hold that the High Court has revisional jurisdiction against an order of a Magistrate made under s. 133 read with s. 140 of the Code.

10. Two other decisions have to be considered. The first is Lallubhai Dayaram v. State of Bombay. In that case a Sub-Divisional Magistrate held proceedings under s. 145 of the Criminal Procedure Code. After holding the enquiry he made a final order under s. 145, sub-s. (4). The petitioner made an application in revision to the Sessions Court. The Sessions Judge held that he had no jurisdiction to deal with the matter. Mr. Justice Chainani speaking for the Bench did not decide whether a proceeding under s. 145 is a proceeding entertained by a Criminal Court. He said that a revisional application did not lie to the Sessions Court in view of the special provisions of s. 435, sub-s. (4) of the Code which enabled the High Court to exercise powers of revision in such a proceeding, which excluded the general provision. This decision dealt only with the power of the Sessions Court to revise an order made by a Sub-Divisional Magistrate under s. 145(2). The same reasoning, however, will not apply so far as the powers of the High Court are concerned in respect of proceedings other than those referred to in s. 435(4). It is not possible to contend that because under s. 435, sub-s. (2) revisional jurisdiction is conferred on the’ District Magistrate or the Sub-Divisional Magistrate, the High Court cannot have revisional jurisdiction, since in relation to orders made under ss. 118, 122, 143, 144 or 145 such jurisdiction is conferred in the High Court. It is obvious, therefore, that the revisional powers of the District Magistrate do not affect the powers of the High Court to revise those orders by the very scheme of the Act.

11. The next case to which a reference has been made is Ramchmdra Nagoji v. Dhondiram . 1965 68 Bom. L.R 233.. This was again a case of an order made by a Sub-Divisional Magistrate under s. 145. The Sessions Judge had declined to exercise jurisdiction to revise the order. In this case it was argued before the learned Judge that a proceeding under s. 145 was a proceeding before an inferior Criminal Court, which question was left open in Lallubhai Dayaram's case. The learned Judge rejected that contention. While construing s. 17B the learned Judge said that the words “Courts of Magistrates (including the Courts of Presidency Magistrates)” must mean Courts of Judicial Magistrates, as, according to him, the words in the bracket “including the Courts of Presidency Magistrates” would be redundant. In this connection it must be noticed that the words “including the Courts of Presidency Magistrates” are enclosed in a bracket. This would show that it was intended to prevent some possible argument that the Courts of Presidency Magistrates were not included within the words “Courts of Magistrates”. We have already indicated why this limitation cannot be accepted. The learned Judge also relied upon sub-s. (4) of s. 435. We have already shown how that section does not limit the effect of sub-s. (1) of s. 435 except in the case of a Sessions Court as pointed out by the decision in Lallubhai's case. As has been held by the Supreme Court in State of Vttar Pradesh v. Kaushailiya, such proceedings even before an Executive Magistrate are judicial proceedings before inferior Criminal Courts and they are subject to the revisional powers of the High Court. The Legislature must be credited with the knowledge that under art. 227 of the Constitution the Executive Magistrates would be subject to the superintendence of the High Court in the exercise of judicial functions and in the Code this is maintained. We hold that the High Court has revisional jurisdiction over such proceedings.

12. On merits Mr. Jethmalani contends that the Sub-Divisional Magistrate had no jurisdiction to act under the provisions of s. 133, paras. (1) and (2) and his order is, therefore, without jurisdiction. The Sub-Divisional Magistrate appears to have exercised those powers apparently under paras. (1) and (2) of that section. So far as relevant they are: (1) whenever a Presidency Magistrate specially empowered by the State Government in this behalf or a District Magistrate or a Sub-Divisional Magistrate considers on receiving a police report or other information and on taking such evidence, if any, as he thinks fit that any unlawful obstruction or nuisance should be removed from any way, river, or channel which is or may be lawfully used by the public, or from any public place, or (2) that the conduct of any trade or occupation or the keeping of any goods or merchandise, is injurious to the health or physical comfort of the community, and that in consequence, such trade or occupation should be prohibited or regulated or such goods or merchandise should be removed or the keeping thereof regulated…. such Magistrate may make a conditional order requiring the person causing such obstruction or nuisance, or carrying on such trade or occupation or keeping any such goods or merchandise to remove such obstruction or nuisance, or to desist from carrying on, or to remove or regulate in such manner as may be directed, such trade or occupation; or to remove such goods or merchandise, or to regulate the keeping thereof in such manner as may be directed. A plain reading of the first para shows that the power is exercisable if there is an unlawful obstruction or a nuisance (1) on any way, river, or channel, which is lawfully used by the public, (2) if there is any unlawful obstruction or nuisance in any public place. The wording clearly postulates that the obstruction or nuisance is on any way, river or channel which is used by the public. This means that the public must have a right of way which is being obstructed or on which nuisance is made. Or it must be a public place where any of these things is done.

13. As we have stated earlier the application was made by the Officer in charge of the Kopri Colony to the Sub-Divisional Magistrate in clear terms alleging that the said channel is situated in the private property of the petitioner. Evidently, therefore, not being a public place the second contingency cannot apply. The application does not state that the public have any right on the channel. Since the land is a private property of the petitioner public cannot possibly have any right to use the channel as such. It is not even his case that the public has a right of discharging water in it. His only allegation is that the Society has diverted the flow of this channel and therefore some water accumulates in the land of the Society and the same is dangerous to 32 cabins which have been erected by the Colony. It also affects some septic tanks by forcing mud into them. It is obvious that the allegations do not bring the case within the ambit of first contingency as well.

14. The notice, annexure ‘D’ to the petition dated June 26, 1965, issued by the Sub-Divisional Magistrate alleges that the action of the petitioner resulted in accumulation of water in the surrounding area resulting in a public nuisance and that the same is injurious to public health. If it was his intention to apply the second para of the sub-section, again the order is without jurisdiction, as it is obvioas that it is intended only to apply to a trade or occupation, and secondly to the keeping of any goods or merchandise and it cannot for a moment be argued that the water which accumulates is either goods or merchandise and it has not been so argued.

15. Mr. Gambhirwalla in support of his contention that the case falls within the second contingency mentioned in the first paragraph contended that the nalla is a public nalla, and that it is a public place, by reason of s. 37 of the Land Revenue Code. History of s. 37 of the Land Revenue Code and its meaning have been dealt with extensively in Narharsingji Ishvarsingji v. Secretary of State . 1940 43 Bom. L.R 167.. The section declares the ownership of the Government only in respect of items referred to in the section, which would include a nalla, provided it is not shown to be private property.

16. Admittedly this nalla is a part of S. No. 20 and falls within it and, therefore, it cannot be the contention of the Government and it is never so far been in the correspondence which has been produced before us, that this is the property of the Government. Even assuming that it is the property of the Government, it must be a public place or that the public must have a right to use it, which is not so. The first para, of s. 133 does not apply.

17. The conclusion to which we have reached is supported by the decisions in. In re Maharanu Shri Jaswatsangji8 and Jagarnath Sahu v. Parmeshwar Narain . 1914 I.L.R 36 All. 209.. Mr. Gambhirwalla relied upon the decision in Emperor v. Bharosa Pathak . 1912 I.L.R 34 All. 345. and in Zaffer Nawab v. Emperor . 1904 I.L.R 32 Cal. 930.. So far as the first case is concerned it has been distinguished by the Division Bench of the Allahabad High Court in Jagarnath Sahu v. Parmeshwar Narain. The second decision Zaffer Nawab v. Emperor cannot have possible application to the present case. Admittedly in that case nuisance was created in a public place.

18. Accordingly we quash the order of the Sub-Divisional Magistrate and also the order of the Sessions Judge.

19. Orders set aside.