GOLAM MAHAMMAD Vs. SARIF BAIG

JUDGEMENT

(1.) Criminal Misc. Case No. 90 of 1957 was filed by one Golam Mahammad under Section 561A of the Criminal Procedure Code for clarification of my order in Original Revision No. 190 of 1956 and for quashing the proceeding before the Sub-Divisional Magistrate for redelivery of land started by the opposite party Sarif Baig in Criminal Misc. Case No. 19 of 1957. The petitioner also prayed that pending the disposal of the application the proceeding before the Sub-Divisional Magistrate, Sadar, Dhenkanal be stayed.

(2.) Original Criminal Misc. Case No. 8 of 1958 is a proceeding in contempt against the Sub-Divisional Magistrate, Dhenkanal, which was instituted under the following circumstances: The application in Criminal Misc. Case No. 90 of 1957 was filed by the petitioner on 28-11-57 and was moved before me on the same day. By order No. 2 dated 25-11-57 I admitted the application and granted an interim stay of further proceedings in Criminal Misc. Case No. 19 of 1957 of the Court of Shri B. K. Kar, Sub-Divisional Magistrate, Dhenkanal. This order of stay was communicated, as was the practice then, to the District Magistrate of Dhenkanal for being communicated to the Sub-Divisional Magistrate. In the usual course of business the stay order must have been received by the District Magistrate of Dhenkanal on 26-11-57 and the Court of the District Magistrate, I am told, is by the side of the Court of the Sub-Divisional Magistrate. A telegram was also sent to the pleader appearing for the petitioner before the Sub-Divisional Magistrate by the learned counsel who appeared before me for the petitioner to the effect, "Golam Mohammad's case, further proceedings stayed". The application filed by the opposite party before the Sub- Divisional Magistrate for restoration of possession was posted for orders to 2711-57. After the receipt of the telegram on 26-11-57 the petitioner filed an application before the Sub-Divisional Magistrate that the proceedings were stayed by an order of this Court and with the petition the telegram also was enclosed. The Sub-Divisional Magistrate was not in headquarters on that day and the Second Officer received the application and directed the same to be placed before the Sub-Divisional Magistrate. On 27-11-57 this application was placed before the Sub-Divisional Magistrate, by which time he had not pronounced the order in the case. But on this application the Sub-Divisional Magistrate passed an order, "No action can be taken on telegram. File". This order was not carried into the order-sheet of the Misc. Case No. 19 of 1957 and immediately afterwards he pronounced the order on the application filed by the opposite party directing that he is to put in possession of the disputed property if he is not now in possession.

(3.) These facts were brought to my notice when the Criminal Misc. Case was taken up for hearing on 18-8-58. As the Magistrate pronounced the order after a stay of further proceedings was ordered by this Court, even though a telegram to that effect sent by the learned counsel for the petitioner in this Court to the pleader appearing tor him in the Sub-Divisional Magistrate's Court was filed before the Sub-Divisional Magistrate along with & petition, I was of the opinion that a prima facie case of contempt existed against the Sub- Divisional Magistrate and therefore directed a notice to be issued to the Magistrate to show cause why he should not be committed for contempt for making the order after knowing that there was a stay order by this Court. I also observed that though this order was communicated by this Court to the District Magistrate on 25-11-57 the same was not communicated to the Sub- Divisional Magistrate till 28-11-57 that it was the duty of the District Magistrate to communicate orders of this court forthwith to the Magistrate concerned as there is a peculiar practice in this State for communicating the orders of this Court to the District Magistrate instead of directly to the Magistrate concerned and that as District Magistrates do not convey orders immediately to the concerned Magistrate in whose courts the concerned cases are pending, it is high time that the rule, if there is any, to the effect that all orders should be communicated through the District Magistrates be changed at once. In accordance with this observation, the Full Court directed that the orders passed should be communicated to the Magistrate direct and a copy of the same should be sent to the District Magistrate as there is no specific rule that the order should be sent to the District Magistrate.