KALEKHAN MAHMADKHAN Vs. KARIM REHMAN MALIK

JUDGEMENT

(1.) The question for decision is whether the District Judge has power to impose a fine under Section 10 of the Mussalman Wakf Validating Act, XLII of 1923. The section is silent as to the tribunal by which the penalties therein referred to are to be imposed. It merely says that any person who does certain things is punishable with fine which may extend to Rs. 500, or in the case of a second subsequent offence, with fine which may extend to Rs. 2,000. In the present case the District Judge after holding an inquiry under the Act and finding the present applicant guilty of furnishing false accounts has imposed a fine of Rs. 50. The applicant comes to this Court in revision, and the argument put forward on his behalf is that the offences referred to in Section 10 can only be tried by a Magistrate and not by the District Judge.

(2.) For this proposition reliance is mainly placed on a decision of the Judicial Commissioners Court in Sind, Ali Mahomed V/s. Emperor (1932) I.L.R. 54 All. 475. What was actually held in that case was that the City Magistrate, Karachi, had jurisdiction to deal under Section 10 with a breach of the provisions of the Act. But the reasoning adopted would, I think, tend to show that the Magistrate had exclusive jurisdiction and that the District Court could not have imposed a penalty under Section 10. Briefly the line of reasoning is this. The word "offence" appears in Section 10. "Offence" is defined in the Criminal Procedure Code. There is no reason to suppose that it was intended to have a different meaning in this Act than in the Criminal Procedure Code, and, therefore, according to the view taken by the learned Judges, the proceedings under Section 10 must be regarded as ordinary criminal proceedings. Reliance was placed on Section 29 of the Criminal Procedure Code which provides that when any Court is mentioned under any other law as the Court for trial, an offence under that law shall be tried by such Court. But where no Court is mentioned, it may be tried by any Court constituted under the Code by which the offence is shown in the second schedule to be triable. In the Mussalman Wakf Validating Act there is a definition of "Court" in Section 2 (b). It means as a rule the Court of the District Judge, but in Section 10 itself, as I have said, the word "Court" does not appear.

(3.) The learned District Judge before whom this decision was cited distinguished it on the ground that it merely decided that a Magistrate had jurisdiction to try an offence under Section 10 and did not decide that the District Judge had no jurisdiction. That, I think, is not a very convincing ground of distinction. But he has also referred to a decision of the Allahabad High Court in Nasrullah Khan V/s. Wajid Ali (1929) I.L.R. 52 All. 167, and there is another case of the same High Court, a decision between the same parties in Nasrullah V/s. Wajid Ali (1932) I.L.R. 54 All. 475. These cases support the view which the learned District Judge has taken. In the former case, Nasrullah Khan V/s. Wajid All, it was assumed rather than decided that the District Judge has jurisdiction to impose a penalty under Section 10. In Nasrullah V/s. Wajid Ali (1932) I.L.R. 54 All. 475, however, the point actually arose for determination and it was held that the District Judge is the authority who can take proceedings under and enforce Section 10 of the Act. Mr. Justice Pullan says at p. 478 that the District Judge is in his opinion the only person who can take proceedings under the section. He has not given reasons for this view, but Mr. Justice Niamatullah who took the same view, though, as he says/with some hesitation, considers that the argument in favour of it is that the whole scheme of the Act XLII of 1923 suggests that the District Judge is the proper authority to impose the penalty provided for by Section 10 in respect of certain duties enjoined by the Act.