MT HAZARI Vs. EMPEROR

JUDGEMENT

(1.) This is an application by three girls of the Naik community invoking the revisional powers of this Court under Section 439, Criminal P.C., against an order passed by the Additional District Magistrate of Naini Tal under Section 4, Naik Girls Protection Act (2 of 1929). It appears that one of the applicants, Lalta by name, is not affected by the order in question, and the application has consequently been pressed on behalf of the other two named Hazari and Chanda. An application in revision was also made to the learned Sessions Judge of Kumaun, but he rejected it on the ground that the order sought to be set aside was not a judicial order by an inferior Criminal Court within the meaning of Section 435, Criminal P.C. and was consequently not liable to interference in revision. the correctness of this proposition is challenged by the applicants, who have consequently come up to this Court for relief.

(2.) The circumstances in which the order in question was passed may briefly be stated in order to appreciate the points raised by the applicants. On 25 January 1938 one Thakur Lakhan Singh, who is an Honorary Rescue Officer for Naik Girls, made a report to the Additional District Magistrate of Naini Tal in respect of five girls, including the three applicants, alleging that they were all minors, being less than 18 years of age, and wore living in immoral surroundings and being trained to the profession of prostitution. Upon that report the Additional District Magistrate issued notices to the guardians of the girls under Section 3, Naik Girls Protection Act, asking them to show cause why they should not be ordered to send the girls to some settlement as provided for by Section 4 of the Act. The guardians field objections to the proposed order challenging the allegation that the girls were living in immoral surroundings and were being trained to the profession of prostitution. On the date fixed for the hearing of the matter the Additional District Magistrate examined the Rescue Officer and the girls and made brief notes of their statements which, were not made on oath. This proceeding took place in the presence of the objectors counsel, but it appears from the record that they were not allowed to cross-examine the Rescue Officer. Some arguments were however heard and the Additional District Magistrate passed an order in which ho held that he was satisfied that the girls were all minors and all of them, except one, were being trained as prostitutes. By the same order he directed the four girls to get themselves examined by the lady doctor of the Haldwani Dispensary within a week. The applicants Hazari and Chanda were accordingly examined by the Medical Officer in charge of the Civil Dispensary at Haldwani in the presence of the lady doctor. In his report of that examination the doctor expressed the opinion that they did not appear to be virgins. This examination took place on 16th February 1938, and two days later, apparently without examining the doctor and letting the objectors have an opportunity of cross-examining him or producing any evidence to rebut his opinion, which was by no means definite, the Additional District Magistrate proceeded to pass an order under Section 4, Naik Girls Protection Act, directing three of the girls, including the applicants Hazari and Chanda, to be sent to a settlement at Haldwani to be detained there until they attained majority. It is against this order that the application in revision is directed.

(3.) The argument on behalf of the applicants is that the Naik Girls Protection Act being a penal statute, any inquiry or other proceeding held under it must be governed by the provisions of the Criminal Procedure Code, which were entirely ignored in the present case by the Additional District Magistrate of Naini Tal, who followed a procedure of his own which is utterly inconsistent with all notions of the manner in which an inquiry resulting in a penal order should be conducted. It is contended that the order passed by the Additional District Magistrate amounts to the imposition of a severe penalty on the applicants and their guardians, who were not given any opportunity of defending themselves and showing that there was no justification for any action being taken under Section 4, Naik Girls Protection Act. Great stress was laid on the obvious irregularities in the procedure adopted by the Additional District Magistrate, if judged by the requirements of the Criminal Procedure Code and the Evidence Act, and it was strenuously argued that the whole proceeding being entirely contrary to law, this Court had full power to quash it in revision and to set aside the order in which it culminated. The learned Government Advocate has contended, on the other hand, that this Court has no power to interfere with the order in question because it is an executive order passed by an officer of the Government specially designated to carry out the provisions of the Naik Girls Protection Act and not a judicial order passed by an inferior Criminal Court constituted under the Criminal P. C.. A number of cases have, been cited to show that the District Magistrate is invested with certain powers under various special enactments, and any order passed by him in the exercise of these powers which is not a sentence or punishment for an offence within the meaning of the Indian Penal Code and the Criminal Procedure Code cannot be deemed to be a judicial order by an inferior Criminal Court to which the revisional powers of the High Court can extend.