FRANCIS Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner was appointed as a Special First Class Honorary Magistrate under S.14 [1] of the Criminal Procedure Code for a period of two years from January 20, 1958. Before the expiry of the period, an order Ext. P-2, was passed by Government, by which the petitioner was ordered to cease to hold the office forthwith and notifications were issued withdrawing the magisterial powers which had been conferred on him. This petition is to quash Ext. P-2, as having been made in violation of the guarantee under Art.311 of the Constitution.

(2.) Though Ext. P-2 does not specify the ground on which it was made, the counter affidavit has disclosed, that this action was taken, as the petitioner was reported to have indulged in political activities. The removal of the petitioner from office was therefore by way of punishment. The withdrawal of the magisterial powers was under S.41(1) of the Criminal Procedure Code, and followed as a matter of course.

(3.) The principal question which arises for determination is, whether the petitioner was holding a civil post within the meaning of Art.311. It is not open to doubt, that a Magistrate of the first, second or third class in the regular service, exercising the powers conferred on him as such, is a member of the civil service and also holds a civil post. Under S.14 (1), Crl. P. C, the State Government may confer upon any person ............ all or any of thepowers conferred or conferrable by or under this Code on a Magistrate of the first, second or third class.........; he is a Special Magistrate, and has the same powers and exercises the same functions as a Magistrate borne on the regular cadre and possessing similar powers and exercising similar functions; but because he is not a salaried employee and holds office only for a period, he is not a member of the civil service, but for that reason alone, it cannot be held, that the post which he holds is not a civil post using the term in contradistinction with a post connected with the defence. As held in Yusuf Ali Khan v. Province of the Punjab, AIR 1950 Lah. 59 , the term civil post must be construed, according to the dictionary, and means an appointment or an office on the civil side of the administration, and even a temporary employee or a holder of a temporary post can be deemed to be the holder of a civil post. Judged by this test, I feel no doubt whatever that a Special Magistrate, like his counter part in the regular service, holds a civil post. Bose, J., in Brajo Gopal v. Commissioner of Police, AIR 1955 Cal. 556 , considered the case of an Honorary Magistrate to be an a fortiori case, while deciding that a Special Constable recruited temporarily under the Calcutta Suburban Police Act, 1866 can be deemed to be holding a civil post within the meaning of Art.311. I therefore come to the conclusion, that the petitioner was holding a civil post.