BAIJNATH PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is an application in revision against the order of the learned Additional Sub-divisional Magistrate directing that action should be taken against the petitioner to realise the sum of Rs. 4,700/- by virtue of the powers conferred on the Court under Sections 547 and 386 of the Code of Criminal Procedure.

(2.) IT appears that there is an estate known as Malpur Piparia which was attached under Section 146 of the Code of Criminal Procedure, and it is being managed by the attached estate department. This estate comprises of 107 bighas of bakasht lands, and these lands are annually settled by public auction. IT is said that on 20th October 1954, these lands were settled by public auction for one year and the petitioner Baijnath Prasad Singh was the highest bidder who had agreed to pay Rs. 7,600/-. The bid was knocked down in his favour and it was ultimately approved by the Additional Collector. According to the terms of the settlement, one-fourth of the bid money was to be paid immediately, and the balance by 30th October 1954. IT is said that the petitioner was to have deposited Rs. 1900/- being the one-fourth of the total amount of the bid, but he deposited Rs. 1400/- on 20th October 1954 and prayed for three days' time to deposit the balance and also undertook to deposit the entire sum by 30th October 1954. This prayer was allowed, and the petitioner then deposited Rs. 500/- only. Thereafter the Sub-divisional Magistrate directed that the sum of Rs, 4700/- be realised from the petitioner by issuing a certificate under the Public Demands Recovery Act. At this the petitioner protested saying that the Sub-divisional Magistrate had no jurisdiction to start a certificate proceeding under the said Act, but the Sub-divisional Magistrate took no notice of this; and an appeal was preferred before the Additional Collector of Monghyr who upheld the order of the Sub-divisional Magistrate. Thereafter, a criminal revision was filed in this Court, namely, Criminal Revn. No. 605 of 1955(Pat)(A). This Court was pleased to direct that the order of the learned Magistrate directing the recovery of the amount of Rs. 4700/- by filing a certificate under the Public Demands Recovery Act he set aside. In the judgment, however, some mention was made that an order for recovery of the said sum could be passed under Section 547 of the Code of Criminal Procedure. The Sub-divisional Magistrate finding this immediately proceeded under Section 547 and passed the order complained against which I have stated above.

(3.) IT will be noticed that the order of the learned Sub-divisional Magistrate directing the recovery of the balance of the bid money under the Public Demands Recovery Act was quashed. Therefore there existed no order whatsoever, for the recovery of the same. Even if it be assumed for the sake of argument that the order of the learned Magistrate directing the recovery of the balance of the bid money is a judicial order, because it may be treated more or less in the nature of a distress warrant, it cannot now be said that such a judicial order existed since this Court has already quashed that order. What order then did exist under the Code which would justify the learned Magistrate in proceeding under Section 547, Cr. P. C.? I have great doubt in my mind whether the order of the learned Magistrate directing that the balance of the bid money should be recovered is a judicial order at all. IT is certainly not a judicial order under the Code of Criminal Procedure. As I have already said, even if it be assumed that such an order is a judicial order and is under the Code, there was no order existing since that order directing the recovery of the bid money under the Public Demands Recovery Act had been quashed. Section 547 of the Code of Criminal Procedure contemplates that previous to the passing of any order under Section 547 there must be some order existing under the Code by virtue of which money is payable. When the order of the learned Magistrate under the Public Demands Recovery Act had been quashed, what order existed by which it could have been said that the money was payable, much less whether any order existed under the Code to that effect? Hence, it is quite clear, in my opinion, that the order under Section 547 of the Code of Criminal Procedure was without jurisdiction and must, therefore, be set aside. The application is accordingly allowed.