SAILAJANAND PANDE Vs. SURESH CHANDRA GUPTA

JUDGEMENT

(1.) This appeal by the plaintiff arises out of a suit filed by him for a decree for damages for a sum of Rs. 25,000 against the two defendants said to be liable jointly and severally. The plaintiff's case is that he is a colliery proprietor living at village Khanudih, pergana Nawagarh, in the district of Dhanbad. He has got extensive cultivation and is an income-tax paver. He belongs to a respectable Brahmin family of the District of Dhanbad, has got his relations in other districts around and is held in high esteem amongst his caste men and also by his relatives, neighbours and various important persons within the district of Dhanbad. Shri Suresh Chandra Gupta, defendant No. 1 was a Magistrate exercising first Class powers, within the Baghmara Sub-Division and was posted at Dhanbad. Daya Sagar Sharan, defendant No. 2, was an Upper Division Clerk attached to the office of the Deputy Commissioner, Dhanbad. The plaintiff's case is that defendant No. 1, as Sub Divisional Magistrate, Baghmara, at Dhanbad, by memo No. 3818 dated 5-12-60 issued a letter to him asking Mm to appear on 13-12-60 at 10.30 a. m. and directed him to show cause against prosecution on the petition filed by one Mohri Majhi and others. The letter purports to bear the signature of defendant No. 1 with date 3/12. According to the plaintiff, defendant No. 1 was not a Sub-Divisional Magistrate, Baghmara, on 5-12-60 or 13-12-60, he had no authority to issue any memo to the plaintiff directing him to appear, no cognizane of any offence had been taken against the plaintiff and defendant No. 1 exercised his functions arbitrarily in issuing the aforesaid memo. On 13-12-60 the plaintiff came to Dhanbad in connection with some civil work He was standing near the Dhanbad Bar Library. At about 4.15 p. m. defendant No. 2 accompanied by a Court constable came to the Bar Library and told the plaintiff that he was directed by defendant No. 1 to appear in his chamber. The plaintiff accordingly went to his court although he was not holding any court at that time, and he brought the record of C. M. A. No. 24 of 1960, State v. S. N. Pandey and put the plaintiff to hazat In the said case, no summons was served upon the plaintiff nor was any warrant of arrest for disobedience of the summons issued. There was no occasion for the issue of warrant of arrest and the action of the defendant was wrongful In the 11th paragraph of the plaint the case is that -

(2.) A joint written statement was filed by both the defendants. Their defence, inter alia, is that defendant No. 1 was a Magistrate having first class powers within the territorial jurisdiction and was also vested with powers under Section 190 (1)(a), (b) and (c) of the Code of Criminal Procedure (hereinafter called the Code). He also held power under Sections 260 and 110 of the Code. He was posted in Baghmara Sub-Division at Dhanbad, In the absence of the Sub-Divisional Magistrate, he worked as such, defendant No. 2 was an Upper Division Assistant posted in Baghmara Sub-Division, and he worked as Law Clerk there.

(3.) It may be stated here that the local limits of Babghmara Sub-Division are quite distinct and apart from the local limits of the Sadar Sub-Division of Dhanbad. Due to non-availability of the Court buildings at Baghmara, the Sub-Divisional Magistrate and other Magistrates are allowed to hold their court in some of the Court buildings at Dhanbad although the court buildings are exclusively within the local limits of the Sadar Sub-Division.