ALI MUHAMMAD MANDAL Vs. PIGGOT

JUDGEMENT

(1.) The events which have led up to the present Rule have been fully narrated in the judgment delivered by Mr. Justice Chatterjea and Mr. Justine Cuming on the 2nd July 1920, in the case of Alt Mohammad Mondal v. Sakiruddi hunshi (Piggot) 59 Ind. Cas. 643 : 32 C.L.J. 255 : 24 C.W.N. 1039, and need not be recapitulated at length for our present purpose. It is sufficient to state that proceedings under Section 145 of the Criminal Procedure Code were initiated by the District Magistrate of Malda on the ground that a dispute likely to cause a breach of the peace existed between the Mathurapur Zemindary Concern and the tenants, relating to the right to grow and collect lac on plum trees standing on lands comprised in the holdings of the tenants. The District Magistrate considered the case to be of such emergency that he proceeded to attach the disputed tree s with the lac thereon, pending his decision under Section 145. At a later stage, by order of the District Magistrate, the lac was collected and stored in the godowns of the first party and a portion thereof was sold by auction. The tenants obtained Rules from this Court with a view to set aside the proceedings on the ground, amongst others, that the District Magistrate had no jurisdiction to take action under Section 145 or to make the orders he had passed. This Court stayed further proceedings pending the disposal of the Rule. But notwithstanding such order, the lac has been collected and sold in part, an action which has been attempted to be justified in the letter of the Magistrate, on the allegation that the lac might otherwise considerably deteriorate in value to the detriment of the rightful owner, who-ever he might turn out to be in the end. On the 2nd July 1920, Mr. Justice Chatterjea and Mr. Justice Cuming set aside the proceedings under Section 145 as initiated without jurisdiction and added that the question of disposal of the lac and the sale proceeds of the portion already sold would be dealt with later. The present Rule was then issued, on the 29th July, 1920, sailing upon the District Magistrate of Malda and the opposite party to show cause why the proceeds of sale of the lac as also the lac yet unsold and stored in the godown of the Mathurapur Zemindary Concern should not be made over to the tenants, or why Such other order should not be passed as might seem proper to the Court. As the Rule involves an important question of law touching the jurisdiction of this Court, it has been placed for disposal before a Special Bench constituted with the concurrence of the Fall Court.

(2.) The first point which requires consideration is, whether this Court has inherent power to give directions as to the disposal of property which was attached and has been dealt with by a Subordinate Court in the course of proceedings instituted without jurisdiction under Section 145 of the Criminal Procedure Code. We are of opinion that the question should be answered in the affirmative. It is now well-settled that a High Court is competent, in the exercise of the power of superintendence vested in it under Section 107 of-the Government of India Act, 1915, (which re-placed Section 15 of the Indian High Courts Act 1861), to set aside proceedings instituted without jurisdiction by a. Subordinate Court under Section 145 of the Criminal Procedure Code; such power of superintendence can be exercised notwithstanding Section 435(3) Criminal Procedure Code, which lays down that proceedings under Chapter XII (which comprises SECTIONs 145-148) are not proceedings within the meaning of that section. This view was affirmed in Hurbullulh Narain Singh v. Luchmeswar Prosad Singh 26 C. 188 : 3 C.W.N. 49 : 13 Ind. Dec. (N.S.) 725, Laldhari Singh v. Sukdeo Narain Singh 27 C. 892 at p. 899 : 4 C.W.N. 613 : 14 Ind. Dec. (N.S.) 583, Jagomohan Pal v. Ram Kumar Gope 28 C. 416, Kulada Kinkar Roy v. Danesh 33 C. 33 : 2 C.L.J. 271 : 10 C.W.N. 257 : 2 Cr.L.J. 670 (F.B.) and was subsequently recognised by a Full Bench in the cases of Sukh Lal Sheikh v. Tara Chand 83 C. 68 : 2 C.L.J. 241 : 9 C.W.N. 1046 : 2 Cr.L.J. 618, Khosh Mahomed Sirkar v. Nazir Mahomed 33 C. 352 : 2 C.L.J. 259 : 9 C.W.N. 1065 : 2 Cr.L.J. 637. Section 107 of the Government of India Act, which may thus be invoked to set aside proceedings instituted without jurisdiction, is expressed in perfectly general terms, and, prima facie, there is no reason why the High Court should not, when it sets aside the proceedings, proceed to give Such consequential directions as may be found necessary in the interests of justice in the circumstances of the particular case. That the Court is competent to make such consequential or incidental orders when it exercises its appellate or revisional jurisdiction, is clear from Section 423(1)(d) Section 439(1) and Section 520. In Such circumstances, we may legitimately hold that the High Court may make consequential or incidental orders in the exercise of its power of superintendence over Subordinate Courts, which may be invoked, if occasion should arise, to reach and remedy all forms of judicial high-handedness. Zelhraj Ram v. Debi Pershad 12 C.W.N. 678 : 7 Cr.L.J. 499. This conclusion harmonies with the view formulated in Pulin Behary Pas v. Emperor 16 Ind. Cas. 257 at p. 300 : 16 C.W.N. 1105 at p. 1136 : 13 Cr.L.J. 609 : 15 C.L.J. 517 that Criminal Courts, no less than Civil Courts, exist for the administration of justice, and Courts of both descriptions have inherent power to mould the procedure, subject to the (statutory provisions applicable to the matter in hand, to enable them to discharge their functions as Courts of Justice," The same position was re-affirmed in the following terms in Budhu Lal v. Chattu Gope 39 Ind. Cas. 465 : 44 C. 816 : 25 C.L.J. 193 : 21 C.W.N. 269 : 18 Cr.L.J. 497 the Criminal Procedure Code does not contain a provision corresponding to Section 151 of the Civil Procedure Code; but that section does not lay down any new principle, it merely embodies a legislative recognition of the inherent power of the Court to make Such order as may be necessary for the ends of justice. This inherent power is in no sense restricted in application to civil cases; it is equally applicable to criminal matters. The power is not capriciously or arbitrarily exercised; it is exercised ex debito justifies, to do that real and substantial justice for the administration of which alone Courts exist; but the Court in the exercise, of such inherent power must be careful to see that its decision is based on sound general principles and is not in conflict with them or with the intentions of the Legislature as indicated in statutory provisions." This was not a novel proposition nor a new departure, for the inherent power of the Court had been occasionally recognised in earlier cases. Thus, in Ram Chandra Mistry v. Nobin Mirdha 25 C. 630 : 2 C.W.N. 225 : 13 Ind. Dec. (N.S.) 414 when the Court was invited to apply, to an order made by a Criminal Court, the elementary principle enunoiated by the Judicial Committee in Rodger v. Comptoir, d Escompte de Paris (1871) 3 P.C. 465 at pp. 474, 475 : 40 L.J.P.C. 1 : 24 L.T. 111 : 19 W.R. 449 : 7 Moo. P.C. (N.S.) 314 : 17 E.R. 120 that it is the duty of all (Courts to take care that the act of the Court does no injury to any of the suitors, Mr. Justice Hill observed that in a case which the Court considered to be a fit one in all respects for its application, the Court would not hesitate to enforce the principle referred to. The statement of this principle by Lord Cairns in the case before the Judicial Committee just mentioned is occurred in terms of great generality and may be usefully re-called in this connection.

(3.) One of the first and highest duties of all Courts, is to take one that the act of the Court does no injury to any of the suitors, and when the expression the act of the Court is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of Appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court."