Decided on January 08,1946

EMPEROR Respondents

Referred Judgements :-


Cited Judgements :-



Sen J. - (1.)THIS is an application in revision against an order made by the District Magistrate, Ahmedabad, on August 27, 1945, requiring the appellant to let, the second floor of his house at Vadvali Pole, Shahpur, Ward No.1, Ahmedabad, to one Mr. B. S. Patel, District Inspector of Land Records, with effect from August 28, 1945. THIS order was made under Sub-rule (2) of Rule 81 of the Defence of India Rules, 1939, read with Government Order H. D. (Political War) No. S. D. II/370 dated September 15, 1944. There was an earlier order made by the District Magistrate dated August 22, 1944, requiring the applicant to let the whole of the above-mentioned house to the said Mr. B. S. Patel. He protested against that order contending that he required the whole of his house for his family and his religious preceptor who also lived in the said premises. Thereupon the order complained against now was passed. It is the contention of the appellant that the order passed by the District Magistrate is ultra vires and void. THIS application has come before a full bench because the question has been raised whether this Court, sitting as a criminal revision bench, has jurisdiction to interfere with the order complained against. It seems to us that at least three previous matters were decided by this Court in which orders of a similar kind were concerned. They are: Motichand Balubhai v. District Magistrate, Surat (1944) 47 Bom. L. R. 357, Govanbhai Ambaram v. Kundanmal Shobhagchand (1945) Crim. Revn. Appln. No.23 of 1945, decided by Divatia and Bavdekar JJ. ; on April 11, 1945 (Unrep.) and Emperor v. Amritlal Manilal Shah (1945) Crim. Rev. Appln. No.303 of 1945, decided by Divatia and Rajadhyaksha, July 12, 1945 (Unrep.), The question of jurisdiction was raised, in forms somewhat different to that raised in the present application, in all those three cases. In the first case it was contended that the District Magistrate who had passed the order was a persona designata and that, therefore, this Court had no jurisdiction to interfere. The point raised in the second case appears to have been similar, while in the third case, the order having actually been passed by the Collector of the District, the point that was taken was that the Collector's order was not a judicial order and not, therefore, subject to revision by this Court. In that case, which was decided by Divatia and Rajadhyaksha JJ. , it was held that as the notification which empowered the authority which passed the order stated that the officers empowered to requisition properties were the Collector and the District Magistrate in the mofussil, the order should have been passed by the Collector and District Magistrate, and that, therefore, the order must be deemed to be a judicial order. In all those three cases, it seems to have been assumed or conceded that if the order was made by the District Magistrate it was one that could be revised under Section 439 of the Criminal Procedure Code. The objection as to jurisdiction raised in this case, however, goes deeper. It has been contended by the learned Assistant Government Pleader that in a case for revision under Section 439 the order complained against must come within the scope of the words "any proceeding before any Criminal Court" in Section 435 of the Code, that the order in question cannot be described either as a " proceeding" or as having been passed by a Criminal Court and that the order must be deemed not to be a judicial but an executive order and as such not revisable by this Court. He has argued that a " proceeding"' within the meaning of Section 435 must have some reference to the commission of an offence and that such was not the case here. We are unable to accept this argument. It seems to us that there are some provisions in the Criminal Procedure Code itself which are not concerned, or not necessarily concerned, with the commission or the prevention of an offence, for instance, Sections 488, 144 and 133 of the Criminal Procedure Code. It seems to us obvious that the word '' proceeding " cannot be given such a restrictive significance as contended for by the learned Assistant Government Pleader; a proceeding cannot be said to have any reference, by itself, to the commission or trial of an offence. The second argument that the order in question passed by the District Magistrate cannot be regarded as an order passed by a Court appears to us to be important. THIS argument in its present form was not urged in any of the three previous matters already referred to which were decided by this Court. The District Magistrate is, no doubt, appointed by the Local Government under Section 10 of the Criminal Procedure Code; and the classes of Criminal Courts which are recognised by the Code are mentioned in Section 6.It has been strenuously contended by Mr. Shah for the applicant that a District Magistrate must for all purposes be deemed to be a Court as he is one of the Magistrates mentioned in Section 6 which describes the different kinds of Courts constituted under the Code. It seems to us, however, fairly obvious that a District Magistrate does not always or necessarily act as a Court. There have been decisions in which it has been held that a particular act of, or order made by, a District Magistrate was not that of a Court. For instance, in In re Panduiang Shidrao (1910) 12 Bom. L. R. 1029 it was held; that an order passed by a District Magistrate under Section 44 of the Bombay District Police Act, 1890, was a mere executive police order, and could not, therefore, be interfered with by the High Court in its criminal revisional jurisdiction. In Ratanlal's Unreported Criminal Cases there are two further instances, Queen-Empress v. Kaji Sultan (1891) Unrep Cr. C. 540 and Queen-Empress v. Louis Frances (1893) Unrep. Cr. C. 672, where this Court decided that the High Court had no jurisdiction to interfere with orders made by a District Magistrate under Sections 43 and 46 of the Bombay District Police Act, 1890. The District Police Act gives the District Magistrate large powers for making orders in different matters, for instance, as to licences for the control of theatres, blasting and excavation, brothels, prevention of disorders, prevention of riots or grave disturbance of the peace, maintenance of order at religious ceremonials, prevention of the out-break of epidemic diseases at fairs (ss. 39 A, 40, 41, 42, 43, 44, 45); and it seems to us impossible to regard any such orders as anything but executive orders. The Magistrate when making such orders cannot be regarded as functioning as a Court. Under Section 13 of the District Police Act the District Magistrate is the controlling authority of the police force of the District and his acts as such cannot obviously be those of a Court. Similarly under the Indian Arms Act, 1878, the District Magistrate has been given powers to issue licences for the possession of arms; and there also his powers must be regarded as purely executive and not judicial. The word " Court" has not been defined in the General Clauses Act, but it has been defined in Section 3 of the Indian Evidence Act, and in Sections 19 and 20 of the Indian Penal Code we find definitions of " Judge " and " Court of Justice. " It seems to us hardly necessary to refer to these definitions because if it cannot be said that the District Magistrate must inevitably be a Court, as is clearly shown by the decision in In re Pandurmg Shidrao, it has to be seen in every case whether the order challenged has been passed by a Court or not. Instances of decisions of other High Courts regarding acts of District Magistrates which have not been held to be acts of a Court may be found in Clarke v. Brojendra Kishore Roy Chowdhry (1909) I. L. R. 36 Cal. 433 and Vijiaraghavalu Pillai v. Theagaroya Chetti (1914) I. L. R. 38 Mad. 581.
(2.)THAT the order in question cannot;be regarded as the order of a Court can be further seen from the fact that in the present instance the District Magistrate has exercised merely the authority delegated by the Provincial Government which in its turn derived its authority from the Central Government under the Defence of India Rules. Under the Defence of India Act, Section 2 (2)', rules may be made providing for a large number of matters including the subject of requisitioning of houses. Rule 81 (2) made under the said provisions gives the Provincial Government powers under Clause (bb) to provide for requiring accommodation to be let either generally, or to specified persons or classes of persons, or in specified circumstances. Government Order H. D. (Pol. War) No. S. D. II/370 dated September 15, 1944, under which the District Magistrate's order purports to have been made, appears to have been passed under Section 2 (5) of the Defence of India Act by which the Provincial Government may by order direct that any power or duty which by rule made under Sub-section (1) is conferred or imposed on the Provincial Government, shall in such circumstances as may be specified in the direction, be exercised or discharged by any officer or authority, riot being an officer or authority subordinate to the Central Government. The use of the expression " officer or authority " suggests that the delegation of powers is not to a Court but to a person who can be entrusted with the powers of exercising the specific authority in question. As the Central Government is manifestly not a Court, it seems to us impossible to hold that either its agent or delegate can be regarded in any sense as such. It seems to us clear that in this case it is not possible to hold that the powers exercised by the District Magistrate requiring the applicant to let a part of his premises to the person specified was a judicial order or an order made by a Court, Mr. Shah on behalf of the applicant, besides contending that the very fact that the order was made by a District Magistrate shows that it was made by a Court, has further argued that as the District Magistrate having heard the applicant's objections and. after hearing them passed his final order, the order should be regarded as a judicial order, i. e. an order revisable by this Court. But the real point in this case is whether the order has been passed in a, "proceeding before an inferior criminal Court" within, the meaning of Section 435 of the Code of Criminal Procedure, and in the view that we have taken we must hold that the three matters I have referred to, which were decided in 1944 and 1945 by this Court and wherein it was held that this Court, sitting in its criminal jurisdiction, had jurisdiction to interfere with the orders in question, were wrongly decided. The rule will, therefore, be discharged, as also the stay order. .

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