STATE OF KERALA Vs. K.P. BALAKRISHNAN
LAWS(KER)-1967-11-36
HIGH COURT OF KERALA
Decided on November 13,1967

STATE OF KERALA Appellant
VERSUS
K.P. Balakrishnan Respondents

JUDGEMENT

K.SADASIVAN,J. - (1.) THIS criminal reference arises under the following circumstances. - In Crime No.72 of 1966 of the Ernakulam Town North Police Station one Ambassador car(1964 model ),one Philips Radio,one Tape Recorder and 87 bags of cement were seized alleging that they are articles purchased with the funds misappropriated from M/s Dyre Meakin Brewe­ries Ltd .,by one Balakrishnan who was an employee of the company.Pending further investigation,these articles were produced by the Police before the District Magistrate,Ernakulam.The above said company,in the meantime filed O.S.33 of 1966 in the Ernakulam Sub Court,for recovery from the employee Balakrishnan,the sums mis­appropriated by him while he was the Typist -cum -Assistant of the company.From the suit an order of attachment was issued directing the court to hold the property subject to the further orders of the court,which was served on the District Magistrate on 6th April 1966.In spite of the order,the District Magistrate took steps to sell the said articles under section 516 -A Cr.P.C.In the meantime the defendant's mother preferred a claim petition in the Sub Court and the Sub Judge,thereupon,issued a stay order to the District Magistrate staying the proposed sale of the arti­cles.The learned District Magistrate adjourned the sale to 8th July 1966.On 6th July 1966 the Sub Judge passed another order:˜˜For objection "11 -7.Stay extended till 15th July 1966.On receipt of this order the learned District Magistrate thought that the civil court had no power to stay the sale proposed by the District Magistrate under section 516 -A of the Code of Criminal Procedure.She took the view that under section 516 -A she had unfettered liberty to proceed with the sale.Accordingly the sale was conducted on 8th July 1966.The Sub Judge took exception to the action of the District Magistrate in having sold the articles in the face of the prohibitory order passed by him,and wrote to the District Magistrate on 18th July 1966 requesting her to inform him under what autho­rity the sale was conducted by her in respect of the articles which were subjected to attachment under Order 21 rule 52 C.P.C.The District Magistrate replied that she was obliged to sell the article's since they were perishable and she also stated that as District Magistrate she had wide discretion in selling the material objects produced,under section 516 -A Cr.P.C.and challenged the power of the civil court to stay such action of the criminal court. This matter appears to have attracted public attention and comments appeared in newspapers under double co­lumn headings and finally the matter was taken note of by the High Court and statements of both,the Sub Judge and the District Magistrate were called for.The officers have tried,in their statements,to justify their respective actions.But the position seems to be that the Magistrate ought not to have proceeded with the sale in the face of the order issued by the Sub Judge under Order 21 rule 52 C.P.C.Rule 52 of Order 21 deals with the procedure to be adopted in cases where the property to be attached is in the custody of any court or public officer.In such cases the attach­ment will be effected by issuing a notice to the court or officer requesting that such property may be held by the court or officer subject to the further orders of the attaching court.That this order was received by the District Magis­trate is not disputed.Thereafter the civil court proceeded to enquire into the claim preferred by the defendant's mother and during the interval a stay order was issued to the District Magistrate requesting her to postpone the sale.In pursuance of that order the sale was once put off;but another time when again the order came extending the stay,it struck the District Magistrate that the civil court had no power to stay the hands of the District Magistrate engaged in an action under section 516 -A of the Code of Criminal Procedure.Accordingly she proceeded with the sale ignor­ing the stay order.
(2.) The action of the District Magistrate cannot be said to be correct.In Haobam Nongyai Singh v.T.B.Singh 1961 -2 Crl.L.J.256(Manipur)a similar situation arose and it was held by the court that: Inspite of an order regarding custody or possession passed by the civil court,the Magistrate passes an order in conflict with the one passed by the civil court,such a conflicting order cannot be allowed to stand and it is a fit case for interference under sections 439 and 561 -A. On an earlier occasion the question seems to have come up before the Punjab High Court in G.S.Tambe v.State of Delhi 1957 Cr.L.J.92 "1956 Punjab L.R.448 where a few bundles of currency notes in the custody of the Criminal court was attached by the Insolven­cy Court(The 2nd Addl.District Judge,Indore ).The Insolvency court was informed that the Magistrate was going to dispose of the property in spite of the attachment.The Insolvency court requested the Magistrate not to pass any order for disposal of the money until further orders passed in the Insolvency proceedings.To this the learned Magistrate replied that the money recovered from the accused belonged to the complainant and that the property did not belong to the accused so as to be attached by the liquidation court and the money was handed over by the Magistrate to the complainant.It was held that the dis­posal of property by the Resident Magistrate was in contra­vention of the provisions of law contained in section 516 -A of the Criminal Procedure Code and in defiance of the pro­hibitory orders issued by the courts of competent jurisdic­tion ;.It was further held that the action of the Resi­dent Magistrate was improper and illegal and constituted an abuse of the process of court ;. In the same way in the present case also the District Magistrate was not justified in proceeding with the sale in the face of the prohibitory order served on her from the Sub Judge under Order 21 rule 52 C.P.C.In Johnson v. Saramma 1956 K.L.T.80 this court has observed in a case where the Magistrate refused to give effect to a stay order issued by the civil court that to maintain healthy relations between the civil and criminal branches of the judiciary the Magistrate should have respected the order ;.In any event,therefore,the Magistrate instead of proceeding with the sale straight­away,should have told the civil court of the expediency of the sale "if in fact the sale was expedient "and proceeded further,with the concurrence of the civil court.Courts have often held that stay of criminal proceedings can be allowed only on special and justifiable grounds,on the principle that the policy of the criminal law is to bring an accused to justice as speedily as possible so that if found guilty he may be punished and if innocent he may be let off as early as possible.But that is not the position here.We are concerned here with the question whether under sec­tion 516 -A of the Code it was expedient for the Magistrate,to have hurriedly proceeded with the sale in the face of the prohibitory order from the civil court.The position of the District Magistrate in this case is that of a garnishee hold­ing the property of the defendant and in that case also she ought to have respected the order and given effect to it.But now that the sale having taken place and the money is in the custody of the court,the ends of justice are not defeated,and disbursement can be made in accordance with the final result of the proceedings.All that I wish to observe is that in future for healthy relations to be maintained between the civil and criminal judiciary,such situations should be avoided and attachment order issued by a civil court should be respected and given effect to by the criminal court.The reference is thus answered.;


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