judgement:
iminal Appeal No. 17 of 1968.
Appeal by special leave from the judgment and order dated August 17, 1967 of the Bombay High Court in Criminal Revision Application No. 668 of 1967.
section Bhutani and Urmila Kapur, for the appellant.
B. R. L. Iyengar and P. C. Bhartari, for the respondents.
The Judgment of the Court was delivered by Shelat, J.
At all material times respondent I had her office premises in Nawab Building, Fort, Bombay, which consisted of two cabins.
On July 10, 1964, she entered into an agreement with the appellant permitting him, to occupy one of the cabins on leave 82 and licence for a period of eleven months.
On June 9, 1965, the agreement was extended for a period of eleven months.
The appellant 's case was that it was further extended for another eleven months as from May 10, 1966 and respondent 1 accordingly accepted Rs. 450 as compensation for May 1966.
Respondent I thereafter demanded higher compensation which he refused to pay and thereupon respondent 1 refused to execute the renewal and threatened to eject him forcibly if he did not vacate.
His case further was that in the morning of June 11, 1966 respondent 1 broke open the staple of the cabin, removed the door from its hinges, removed all his belongings lying in the cabin and dumped them in the passage outside.
She then handed over possession of the cabin to respondents 2 and 3 purporting to do so under an agreement of licence dated June 1, 1966.
When he went to the cabin he found the cabin occupied by respondents 2 and 3.
On his asking them to place back his belongings and to restore possession to him, the respondents threatened him with dire consequences.
He, therefore, went to the police station but the police refused to take action and only recorded his N.C. complaint.
From the police station he and his friend, Mahomed Salim returned to the cabin when, on their demanding possession of the cabin, the respondents attacked them.
In the course of that attack, the said Salim received injuries.
He and the said Salim once again went to the police station but the police again refused to take action and recorded another N.C. complaint and sent Salim to the hospital for examination.
Due to the persistent refusal by the police to help him to get back the cabin, the appellant approached higher authorities in consequence of which the police at last recorded a case of assault against respondent 1.
They then arrested respondent 1 but released her on bail.
Respondent 1, however, kept some persons near the cabin to prevent the appellant from recovering possession.
There was, therefore, every likelihood of a breach of the peace had he gone to the cabin to regain possession.
In these circumstances he filed an application before the Additional Chief Presidency Magistrate under section 145 of the Code of Criminal Procedure.
The Magistrate then directed the parties to file affidavits and to adduce such further evidence as they desired.
Accordingly, the parties filed affidavits of various persons who had their offices in the same building.
The appellant, besides other affidavits, also filed an affidavit of one Nathani, the Manager of his company at whose instance, it was the case of respondent 1, the appellant had agreed to hand over and actually did hand over possession of the cabin in the morning of June 11, 1966.
That affidavit, however, did not support respondent 1 but, on the contrary, denied that Nathani had agreed that the appellant could vacate or that the appellant at his instance had agreed to do so. 83 In her written.
statement, respondent I denied that the said licence was renewed a second time in May 1966.
Her case was that at the request of the appellant she had permitted him to continue in possession, till May 1966 on his promising to vacate by the end of that month, that on June, 11, 1966, the appellant vacated the cabin, kept his belongings in the passage and thereupon she permitted respondents 2 and 3 to occupy it as, relying on the appellant 's promise that he would vacate by the end of May 1966, she had already entered into an agreement of licence on June 1, 1966 with respondent 3.
She denied that any incident, as alleged by the appellant, had occurred on that day or that the appellant or the said Salim was assaulted by her or by respondent 2 or 3.
She, therefore, denied that any dispute existed on that day or that there was any likelihood of a breach of the peace.
Respondents 2 and 3 also filed their written statements on the lines taken by respondent 1.
But after filing them, they did not participate any more in the proceedings as they had since then vacated the said cabin.
Possession, therefore, of the cabin since then remained with respondent 1.
Respondent 1 in the meantime filed a suit in the City Civil Court and took out a notice of motion for restraining the appellant from, interfering with her possession of the cabin.
The Court dismissed the notice of motion refusing to rely on the said agreement.
In the proceedings before the Magistrate the main question was whether the appellant was in actual possession on June 11, 1966 and whether he was forcibly and worngfully dispossessed by respondent 1 or whether he had vacated and surrendered the cabin to respondent 1.
After considering the affidavits and the evidence led by the parties, the Magistrate reached the following findings.
(1) that respondent 1 started harassing the appellant from the beginning of June 1966 and gave threats to forcibly dispossess him if he did not vacate; (2) that the appellant 's version that the respondents had forcibly and wrongfully taken possession of the cabin in the morning of June 11, 1966 was true; and (3) that when the appellant and the said Salim went to the cabin, the respondents manhandled them as a result of which Salim received injuries.
On these findings, he held that the appellant was in actual possession on June 11, 1966 and that under the second proviso to section 145 (4), though he had been dispossessed on June 1 1, he must be deemed to be in possession on June 20, 1966 when the Magistrate passed his preliminary order.
By his final order dated ' June 22, 1967 passed under sub section
(6), the Magistrate directed restoration of possession to the appellant till he would be evicted ' in due course of law and prohibited the respondents from interferring with his possession till then.
In the revision before the High Court, the respondents raised two contentions : (1) that the Magistrate, in entertaining the said 84 application and passing the said preliminary order,.
misconceived the scope of proceedings under section 145, and (2) that he had no jurisdiction to pass the said preliminary order as in the events that had happened there was no existing dispute likely to result in a breach of the peace.
, The High Court accepted these contentions .and set aside the order of the Magistrate.
In doing so, it observed that the object of section 145 was to, preserve peace and to provide a speedy remedy against a likely breach of peace where there is an existing dispute regarding possession of an immovable property until such dispute is adjudicated upon by a proper tribunal.
That section, therefore, can be invoked where these two conditions exist, namely, an existing dispute and an apprehension of breach of peace.
The Magistrate, therefore, had to be satisfied as to the existing of these two conditions when he passed the preliminary order.
The High Court then observed that assuming that the appellant was forcibly and wrongfully dispossessed and the said Salim was assaulted by respondent 1 and her men, it could not even then necessarily mean that there was an existing dispute relating to possession of the cabin which was likely to cause breach of peace on June 20, 1966 when the Magistrate passed his preliminary order.
The acts of respondent I might constitute an offence, for which the appellant had filed a complaint under section 341 of the Penal Code and the police had arrested respondent 1. and released her on bail, In the light of these facts the Magistrate ought to have held that on that day there did not any longer exist any dispute regarding possession of the said cabin which was likely to lead to a breach of the peace.
The High Court, further, observed that the preliminary order did not also record the reasons for the Magistrate 's satisfaction as to the two conditions and that all that it stated was that on the facts stated in the said application, he was satisfied that there was a dispute which was, likely to cause breach of the peace.
The High Court also observed that all that the application showed was that there was forcibly dispossession and an attempted assault; that from these two facts it was difficult to see bow, without any further enquiry, the Magistrate could come to the conclusion that there was likelihood of breach of peace unless it was assumed that in every case of a dispute over possession of an immoveable property and forcibly dispossession there would be continuous possibility of breach of peace.
The High Court complained that the Magistrate did not call for a police report and simply relied on the bare allegations of an interested party.
On this reasoning, it held that the Magistrate had misconceived the scope of proceedings under section 145 and passed the preliminary order as if it was a process issued by him in a non cognisable case.
The High Court also noted that respondent I had placed respondent (3) in possession, that respondent 3 had remained in possession for nearly a year by the time the Magistrate passed his final order, that the final order would, therefore, affect his vested rights, and that 85 this fact coupled with the fact of the appellants complaint under section 341 of the Penal Code on June 13, 1966 ought to have been considered by the Magistrate before passing the final order.
As aforesaid, the High Court set aside the Magistrate 's order whereupon the appellant obtained special leave and filed this appeal challenging the correctness of the High Court 's order.
Before proceeding further, we may mention that respondents 2 and 3 had vacated the premises long before the Magistrate passed the final order.
There was, therefore, no question of the Magistrate having to consider the question of their having been in possession for about a year or their having any vested rights under the agreement dated June 1, 1966.
It may also be recalled that the City Civil Court had refused to rely on the said agreement and to pass an interim injunction restraining the appellant from disturbing the possession of respondent 1.
The object of section 145, no doubt, is to prevent breach of peace and for that end to provide a speedy remedy by bringing the parties before the court and ascertaining who of them was in actual possession and to maintain status quo until their rights are determined a competent court.
The section requires that the Magistrate must be satisfied before initiating proceedings that a dispute, regarding an immoveable property exists and that such dispute is likely to cause breach of peace.
But once he is satisfied of these two conditions, the section requires him to pass a preliminary order under sub section
(1) and thereafter to make an enquiry under sub section
(4) and pass a final order under sub section
It is not necessary that at the time of passing the final order the apprehension of breach of peace should continue or exist.
The enquiry under section 145 is limited to the question as to who was in actual possession on the date of the preliminary order irrespective of the rights of the parties.
Under the second proviso, the party who is found to have been forcibly and wrongfully dispossessed within two months next preceding the date of the preliminary order may for the purpose of the enquiry be deemed to have been in possession on the date of that order.
The opposite party may of course prove that dispossession took place more than two months next preceding the date of that order and in that case the Magistrate would have to cancel his preliminary order.
On the other hand, if he is satisfied that dispossession was both forcible and wrongful and took place within the prescribed period, the party dispossessed would be deemed to be in actual possession on the date of the preliminary order and the Magistrate would then proceed to make his final order directing the dispossessor to restore possession and prohibit him from interfering with that possession until the applicant is evicted in due course of law.
This is broadly the scheme of 145.
86 The satisfaction under sub section
(1) is of the Magistrate.
The question whether on the materials before him, he should initiate proceedings or not is, therefore, in his discretion which, no doubt, ,has to be exercised in accordance with the well recognised rules of law in that behalf.
No hard and fast rule can, therefore, be laid down as to the sufficiency of material for his satisfaction.
The language of the sub section is clear and unambiguous that he can .arrive at his satisfaction both from the police report or "from other information" which must include an application by the party dispossessed.
The High Court, in the exercise of its revisional jurisdiction, would not go into the question of sufficiency of material which has satisfied the Magistrate.
The question is whether the preliminary order passed by the Magistrate was in breach of section 145(1), that is, in the absence of either of the two conditions precedent.
One of the grounds on which the High Court interfered was that the Magistrate failed to record in his preliminary order the reasons for his satisfaction.
The section, no doubt, requires him to record reasons.
The Magistrate has expressed his satisfaction.
on the basis of the facts set out in the application before him and after he had examined the appellant on oath. 'That means that those facts were prima facie sufficient and were the reasons leading to his satisfaction.
The other reason which, according to the High Court, vitiated the order was that the Magistrate acted only on the allegations in the appellant 's application without making any further enquiry and issued the order as if he was issuing a process in a N.C. case.
But counsel for the respondents conceded that before passing the order the Magistrate had examined the appellant on oath and it was then only that he made the order recording his satisfaction.
But apart from the allegations in the application as to his forcible and wrongful dispossession and assault, there was the fact that on .
June 11, 1966 the appellant had gone twice to the police station, requested the police to take action and had lodged two N.C. complaints.
This material being before the Magistrate, it was hardly 'fair to blame the Magistrate that he had passed his preliminary order lightly or without being satisfied as to the existence of the 'two conditions required by the sub section.
Was the High Court next justified in observing that the Magistrate ought to, have got a police report on the allegations made in the application before he passed his said order ? Such a view has been taken in some decisions.
In Phutania vs Emperor(1) the view taken was that it was a safe general rule for a Magistrate to refuse to take action under section 145 except on a police report and that the .absence of such.
a report is almost conclusive indication of the absence of any likelihood of breach of peace.
A similar opinion has also been expressed in Ganesh vs Venkataswara(2) where, (1) (1924) 25 Cr.
L.J.1109.
(2) 87 relying on Raja of Karvetnagar V. Sowcar Lodd Govind Doss(1), the Mysore High Court observed that law and order being the, concern of the police it is but natural that the Magistrate should either be moved by the police or if moved by a private party, he should call for a police report regarding the likelihood of breach of peace.
But the High Court of Madras in the case of Raja of Karvetnagar(1), did not lay down any such proposition but merely sounded a note of caution that in the absence of a police report the statements of an interested party should not be relied on without caution and without corroboration. ' the proposition that the Magistrate before proceeding under section 145 (1) must, as a rule, call for a police report where he is moved by a private party or that the absence of a police report is a sure indication of the absence of possibility of breach of peace, is not warranted by the clear language of the section which permits the Magistrate to initiate proceedings either on the police report or "on other information".
The words "other information" are wide enough to include an application by a private party.
The jurisdiction under section 145 being, no doubt, of an emergency nature, the Magistrate must act with caution but that does not mean that where on an application by one of the parties to the dispute he is satisfied that the requirements of the section are.
existent, he cannot initiate proceedings without a police report.
The view taken in the aforesaid two decisions unnecessarily and without any warrant from the language of sub section
(1) limits the discretion of the Magistrate and renders the words "other information" either superfluous or qualifies them to mean other information verified by the police.
In our view, once the Magistrate, having examined the applicant on oath, was satisfied that his application disclosed the existence of the dispute and the likelihood of breach of peace, there was no bar against his acting under section 145(1).
The next ground for the High Court 's interference was that assuming that the appellant was forcibly and wrongfully dispossessed and the said Salim was assaulted, the said dispossession was completed, a complaint of assault was lodged and the police had already taken action before the preliminary order was passed on June 20, 1966.
Therefore, it was said, there was no longer any dispute on the date of the order likely to lead to breach of peace and consequently the order did not comply with the requirements of section 145(1) and was without jurisdiction.
This reasoning would mean that if a party takes the, law into his hands and deprives forcibly and wrongfully the other party of his possession and completes his act of dispossession, the party so dispossessed cannot have the benefit of section 145, as by the time he files his application and the Magistrate passes his order, the dispossession would be complete and, therefore, there would be no existing, dispute likely (1) (1906) I.L.R .29 Mad.561. 88 to cause breach of peace.
Such a construction of section 145, in our view, is not correct, for it does not take into consideration the second proviso to sub section
(4) which was introduced precisely to meet such cases.
The Magistrate has first to decide who is in actual possession at the date of his preliminary order.
If, however, the party in de facto possession is found to have obtained possession by forcibly and wrongfully dispossession the other party within two months next preceding the date of his order, the Magistrate can treat the dispossessed party as if he was in possession on such date, restore possession to him and prohibit the dispossessor from interfering with that possession until eviction of that person in due course of law.
The proviso is founded on the principle that forcible and wrongful dispossession is not to be recognised under the criminal law.
So that it is not possible to say that such an act of dispossession was completed before the date of the order.
To say otherwise would mean that if a party who is forcibly and wrongfully dispossessed does not in retaliation take the law into his hands, be should be at disadvantage and cannot have the benefit of section 145.
The word "dispossessed" in the second proviso means to be out of possession, removed from the premises, ousted, ejected or Excluded.
Even where a person has a right to possession but taking the law into his hands makes a forcible entry otherwise than in due course of law, it would be a case of both forcible and wrongful dispossession : (of Edwick vs Hawkes(1) and jiba vs Chandulal) (2).
Sub section (6) of section 145 in such a case permits the Magistrate to direct restoration of possession with the legal effect that is valid until eviction in due course of law.
In Jiba vs Chandulal (2) the High Court of Bombay held that it would be unfair to allow the other party the advantages of his forcible and wrongful possession and the fact that time has elapsed since such dispossession and that the dispossessor has since then been in possession or has filed a suit for a declaration of title and for injunction restraining disturbance of his possession is no ground for the Magistrate to refuse to pass an order for restoration of possession once he is satisfied that the dispossessed party was in actual or demand possession under the second proviso.
Similarly, in A. N. Shah vs Nageswar Rao(") it was held that merely because there has been no further violence after one of the parties had wrongfully and forcibly dispossessed the other it cannot be said that there cannot be breach of peace and that, therefore, proceedings under section 145 should be dropped.
It may be that a party may not take the law in his hands in reply to the other party forcibly and wrongfully dispossessing him.
That does not mean that he is not to have the benefit of the remedy under section 145, The (1) (2) A.I.R. 1926 Bom.
(3) A.I.R.1947 Mad. 133. 89 second proviso to sub section (4 ) and sub section (6) contemplate not a fugitive act of trespass or interference with the possession of the applicant, the dispossession there referred to is one that amounts to a completed act of forcible and wrongful driving out a party from his possession: (of Subarna Sunami vs Kartika Kudal) (1) It is thus fairly clear that the fact that dispossession of the appellant was a completed act and the appellant had filed a criminal complaint and the police had taken action thereunder do not mean that the Magistrate could not proceed under section 145 and give direction permissible under sub section
In our view, the High Court erred in holding that merely be cause dispossession of the appellant was completed before June, 20.
1966, there was no dispute existing on that day which was likely to lead to breach of peace or that the Magistrate was, therefore, prevented from passing his preliminary order and proceeding thence to continue the enquiry and pass his final order.
In our view, reading section 145 as a whole, it is clear that even though respondent 1 had taken over possession of the said cabin, since that incident took place within the prescribed period of two months next before the date of the preliminary order, the appellant was deemed to be in possession on the date of that order and the Magistrate was competent to pass the final order directing restoration of possession and restraining respondent 1 from interfering with that possession until the appellant 's eviction in due course of law.
We, therefore, allow the appeal, set side the High Court 's order and restore that of the Trial Magistrate.
G.C. Appeal allowed.
(1) (1954) I.L.R.Cuttak 215.

summary/full:
The appellant occupied an office cabin in Bombay on leave and licence from respondent No. 1.
In an application under section 145 of the Code of Criminal Procedure the appellant alleged that on June 11, 1966 respondent No. 1 wrongfully took possession of the cabin and gave in to respondents 2 and 3 who forcibly presented his re entry.
He also lodged a report of the incident with the, police as a result of which respondent No. 1 was arrested for an offence under section 351 Indian Penal Code but was released on bail.
Respondent No.1 filed a civil suit and took out a notice of motion for restraining the appellant from interfering with the possession of the cabin, but the same was dismissed.
The Magistrate trying the application under section 145 of the Code of Criminal Procedure passed a preliminary order on June 20, 1966 recording his satisfaction that a dispute existed.
After considering the affidavits and the evidence led by the parties the Magistrate accepted the appellant 's version of facts and on June 22, 1967 passed the final order under sub section (6) directing restoration of possession to the appellant tin evicted in due course of law.
The High Court in revision set aside the order ,of the Magistrate on the following grounds : (i) That the Magistrate had not recorded his reasons for passing the preliminary order; (ii) that the Magistrate had passed the said order without calling for a police report, merely on the basis of the appellant 's allegations; (iii) That the dispossession of the appellant was completed and a report of assault was lodged by the appellant with the police before the preliminary order was passed, and therefore there was no longer any dispute on the day of the order likely to lead to a breach of the peace.
HELD : (i) The satisfaction under sub section
(1) of section 145 is that of the Magistrate.
The question whether on the materials before him be should initiate proceedings or not is, therefore, in his discretion which, no doubt, has to be exercised in accordance with the well recognised rules in that behalf.
The High Court in the exercise of its revisional jurisdiction would not go into the question of sufficiency of material which had satisfied the Magistrate.
[86A B] In the present case the Magistrate had expressed his satisfaction on the basis of the facts set out in the application before him after he had examined the appellant on oath.
That means that those facts were prima facie sufficient and were the reasons leading to his satisfaction [86C D] (ii) The jurisdiction under section 145 being of an emergency nature, the Magistrate must 'act with caution but that does not mean that where on an application by one of the parties to the dispute he is satisfied that the requirements of the section 'are existent he cannot initiate proceedings 81 without a police report.
The other view limits the discretion of the Magistrate and renders the words , other information ' in section 145(1) either superfluous or qualifies them to mean other information verified by the police.
187D E] Phutania vs Emperor, (1924) 25 Cr. L.J. 1109, Ganesh vs Venkataswara and Raja of Karyentnagar vs Sowcar Lodd Govind Doss, Mad.
561, disapproved (iii) The High Court erred in holding that merely because dispossession of the appellant was completed before June 20, 1966, there was no dispute existing on that day which was likely (to lead to breach of peace or that the Magistrate was, therefore, prevented from passing the preliminary order and proceeding thence to continue the enquiry and pass his final order.
This reasoning would mean that if a party takes the law into his hands and deprives forcibly and wrongfully the other party of his possession and wrongfully completes his act of dispossession, the party so dispossessed cannot have the benefit of section 145.
as by the time he files his application and the Magistrate passes his order, the dispossession would be complete and therefore, there would be no existing dispute likely to cause a breach of the peace.
Such a view does not take into consideration the second proviso to sub section
(4) which was introduced precisely to meet such cases.
[87F H; 88A] The word 'dispossessed ' in the second proviso means to be out of possession, removed from the premises, ousted, ejected or excluded.
Even where a person has a right to possession but taking the law into his hands makes a forcible entry otherwise than in due course of law, it would be a case of both forcible and wrongful dispossession.
[88 D Reading section 145 as a whole it is clear that even though respondent 1 had taken over possession of the cabin, since that incident took place within the prescribed period of two months next before (the date of the preliminary order, the appellant was deemed to be in possession on the date of that order and the Magistrate was competent to pass the final order as he did.
[89 D] Edwick v, Hawkes, , Jiba vs Chandulal, A.I.R. , A. N. Shah vs Nageswara Rao, A.I.R. 1947 Mad. 133 and Subarna Sunami vs Kartika Kudal, (1954) I.L.R. Cuttk. 215, applied.


judgement:
Appeal No. 545 of 1965.
167 Appeal by special leave from the judgment and order dated, December 18, 1961 of the Madhya Pradesh High Court in Misc.
Petition No. 247 of 1961.
M. section Gupta and Yashpal Singh, for the appellant.
section K. Mehta and K. L. Mehta, for the respondents.
The Judgment of the Court was delivered by Shelat, J.
The appellant Municipal Committee is for the vil lage Khurari, a notified area under the Central Provinces and Berar Municipalities Act, 1922.
The Committee is entitled to levy and collect under the said Act and under the Rules made thereunder octroi duty inter alia on foodgrains brought into the municipal limits for sale.
On March 8, 1954, respondents 1 and 2 applied for refund of octroi duty on the ground that they had exported from the municipal area foodgrains of which particulars were given in the schedule attached thereto.
The appellant Committee replied that they would not be entitled to the refund unless they filed with their application the receipts of duty is sued by the Committee at the time when it was paid on the importation of the said foodgrains.
It may be mentioned that it was not the case of the Committee in the said reply that the said goods were not exported by respondents 1 and 2 by rail or that they were not the same goods which were imported into the area and which were purchased by respondents 1 and 2 and on which duty would be payable by the cultivators from whom respondents 1 and 2 had purchased the said foodgrains.
The Committee simply refused to pay the refund as the respondents failed to produce the said receipts.
In the appeal filed by respondents 1 and 2 before the Additional Deputy Commissioner, that officer held, on a construction of rr. 27 and 34, that it would be the.
person who had paid the duty when the goods were brought into the municipal area who alone could claim the refund if the goods exported by him were the same on which the duty was paid.
The Board of Revenue before whom respondents 1 and 2 filed a revision application against the Deputy Commissioner 's said order held that the word 'refund ' in r. 27 meant that the person who had paid the duty could alone be entitled to claim the refund and that respondents 1 and 2 not being such persons could not apply for it.
On that ground alone the Board rejected the revision application.
Respondents 1 and 2 thereupon filed a writ petition in the High Court of Madhya Pradesh for quashing the said orders of the Deputy Commissioner and the Board of Revenue.
The admitted facts before the High Court were, (1) that res pondents 1 and 2 had purchased the said foodgrains from certain cultivators; and (2) that those cultivators had in fact paid octroi 168 duty when they brought the said foodgrains for sale within the municipal area.
The contention of respondents 1 and 2 before the High Court was that as persons who had exported the said goods they were entitled to the refund of the duty paid by their vendors, the said cultivators, ' and that the Board misconstrued the rules and was in error in refusing the refund to them.
A learned Single Judge of the High Court held that under r. 9(c) a declaration had to be made if the goods were intended for consumption or use within the municipal area or if they were intended for immediate export.
He observed that r. 9, however, did not 'provide for any such declaration if the goods brought into the municipal area were intended for sale.
He then observed that section 27 dealt with refund of octroi on the exportation of dutiable goods outside the municipal limits and the exporter thereunder was entitled to a refund of 7/8th of the duty paid on such goods.
He held that the duty having admittedly been paid on such goods by the said cultivators and respondents 1 and 2 having purchased and exported those very goods, they were entitled to the refund.
On this basis he quashed the orders of the Deputy Commissioner and the Board and allowed the writ petition.
In the Letters Patent appeal filed by the appellant Committee, a division bench of that High Court agreed with the Single Judge on his construction of r. 27 but as the Board had considered only one question, namely, whether respondents 1 and 2 not having themselves paid the duty were not entitled to claim the refund, remanded the case for dealing with the rest of the questions.
On remand to the Board, the Committee contended, (1) that respondents 1 and 2 had to establish that duty was paid on the said goods when they, were imported into the municipal area; and (2) that they 'had also to produce the receipts of payment of such duty and that without doing so they were not entitled to the refund.
The Board rejected the contention and held on the strength of rr.
42 and 43 of the said Rules that except in the case of cloth or goods produced or manufactured within the municipal area, no proof by the person claiming refund of duty paid on importation was required and that such payment would be presumed in the case of goods other than the two aforesaid kinds of goods.
The Board further held that r. 27 also did not lay down that the person who has exported the goods had to prove payment of octroi on those goods when they entered the area.
The Board on this interpretation allowed the revision application of respondents 1 and 2 and set aside the orders of the Committee and the Deputy Commissioner and directed payment of the refund.
The Municipal Committee thereupon filed a writ petition in the High Court for quashing the Board 's order contending once again that no octroi duty had been paid on the said foodgrains.
The High Court rejected this contention in view of the admission made by 169 the Committee before the Deputy Commissioner, the Board and the High Court in earlier proceedings that the goods exported by respondents 1 and 2 were duty paid.
The High Court held that in view of those admissions the Committee could not require respondents 1 and 2 to produce the receipts to prove payment of the duty, apart from the fact that the rules did not require a claimant who had exported dutiable goods to produce receipts of payment of duty.
The High Court further held that it was clear from rr. 28 and 29 that the amount of refund is to be determined from the quantity of foodgrains exported or from their value and, therefore, even for determining the amount of refund production of receipts by such a claimant was not necessary nor was such production required by rr.
42 and 43 except, as aforesaid, in the case of two categories of goods, viz., cloth and articles produced or manufactured within the municipal area.
The High Court held that that being the position and there being no dispute as to the fact that the goods in question were duty paid and those very goods had been exported,, there was nothing in the rules which barred respondents 1 and 2 from recovering 7/8th of the duty paid on those goods.
The High Court dismissed the writ petition.
The Committee then filed a review petition before the High Court on the ground that it had not considered in its judgment its contention based on rr.
35 to 38 urged before it, The contention was that compliance of those rules by respondents 1 and 2 was a condition precedent to their being entitled to the refund.
The High Court conceded in its judgment on the review petition that the said point was urged before it but observed that it did not deal with it as during the hearing of the writ petition it was pointed out to the counsel for the Committee that there was no substance in it.
According to the High Court, rr. 35 to 37 did not require any compliance by respondents 1 and 2 as they dealt with matters to be done by the Octroi Superintendent and the Muharrir at the exit post when an application for refund is made by a person exporting the goods out of municipal limits and that the fact that respondents 1 and 2 did not present the challan at such exit post, did not debar them under the 'rules from claiming the refund.
The review petition on this ground was, therefore, rejected.
Aggrieved by the dismissal of its writ petition, the appellant Committee obtained special leave from this Court and filed this appeal.
In view of the aforesaid decision of the Board and the High Court in the earlier stages of this litigation, most of the contentions raised by the Committee justifying its refusal to refund have by now been concluded.
It cannot now be disputed (1) that respondents 1 and 2 had purchased foodgrains from the cultivators who had imported them into the municipal area for sale; (2) that those cultivators had at that time paid the duty on those food;up.
C. I./68 12 170 gains; and (3) that respondents 1 and 2 had exported the identical goods by rail.
Counsel for the Committee, however, urged that the view taken by the High Court was erroneous and that if the rules regarding refund were read together, it would be clear that a person claiming refund would not be entitled to it unless he has followed the procedure thereunder prescribed.
To appreciate this contention it would be necessary to turn to those rules.
The rules dealing with refund of octroi are rr.
27 to 43.
Rule 27 provides that on exportation of dutiable goods outside the municipal limits an exporter shall be entitled to a refund equal to 7/8th of the duty paid on them at the time of their import.
We do not detain ourselves on the proviso to this rule as it is not relevant for the purposes of this appeal.
The object of r. 27 is clear, viz., that in case of dutiable goods, the Committee has to refund to the person who has exported them 7/8th of the duty paid thereon at the time when they were brought into the municipal limits.
The rule does not require such an exporter to produce receipts of payment of duty levied at the time of their entry.
Obviously, the Committee was wrong in insisting upon respondents 1 and 2 to produce receipts before they could be granted the refund, nor could it justify its demand that respondents 1 and 2 should prove that duty had been paid on the said goods at the time of their entry as the rule does not lay down any such obligation on the exporter.
Rules 28 to 33 are not relevant and need not, therefore, be set out.
Rule 34 provides that an application for refund is to be made in the prescribed form and that.the exporter after filling in the particulars has to present his application at the office appointed for that purpose.
Rules 35 to 39 provide an elaborate procedure to be followed at the time of exportation.
Rule 35 provides that on receipt of an application for refund, the Octroi Officer must, satisfy himself that the goods brought for export agree with those mentioned in the application and if satisfied, he must prepare a challan showing the amount of refund and hand it over to the exporter who then shall take the goods beyond the municipal limits.
Under r. 36, the exporter has to present the challan in which the refund amount is calculated at the exit post within the time prescribed which shall not exceed twelve hours from the examination of the goods under r. 35 to their exportation.
Under r. 37, the Muharrir has to check the goods at the exit post and ascertain that the goods agreed with those mentioned in the chalIan and then issue a certificate to the exporter on which the refund would be paid to him.
Rule 38 provides that where the goods are not presented at the out post as provided by r. 35, the exporter may get them verified by the officer who would then make an endorsement on the application and on such endorsement made the exporter would get the refund '.
Under r. 39 when goods are 171 exported by rail, the exporter has to produce the railway receipt as well as the refund challan bearing the certificate of the Muharrir at the exit post.
It is clear from rr.
35 to 39 that they lay down the procedure for claiming refund.
Counsel for the Committee, therefore, appears to be right in his contention that an exporter desiring to claim refund has to make his application at the time of exportation of the goods and in the manner prescribed in these rules.
It appears also that there is considerable force in his contention ,that rr.
42 and 43 deal with only two categories of goods, viz., cloth and articles locally produced or manufactured and that r. 43 is confined to those two kinds of goods only and, therefore, when it provides that no further proof of duty having been paid on them is required, it means that no proof of such payment other than the one mentioned in r. 42 would be needed in respect of the said two categories of goods.
In our view, r. 43 has to be read in the context of r. 42 and must, therefore, be read to mean that no further proof of payment other than the one mentioned in r. 42 would be required to respect of those two classes of goods and, therefore, r. 43 does not apply to other kinds of goods.
The reason is that if r. 43 is read in the manner in which the High Court has read it, it would render rr.
35 to 39 totally nugatory, a construction which a court having to construe these rules, would be loath to adopt.
It would seem, therefore, that these rules do provide a procedure which an exporter wishing to claim refund has to follow.
But the question is whether in a case where an exporter has not done so, is he disentitled from claiming the refund ? The real difficulty in the way of the appellant Committee is that though the rules lay down a procedure which such an applicant has to follow, they do not provide at the same time that an applicant for refund who has failed to follow the procedure laid down in rr.
35 to 39 would be disentitled to claim the refund.
In the.
absence of such a provision coupled with the categorical language of r. 27 giving a right to an exporter of dutiable goods to claim 7/8th of the duty paid on such goods on their import, it becomes difficult to uphold the denial by the appellant Committee of the right of respondents 1 and 2 to such a refund.
We are, therefore, of the opinion that in the present state of the rules, the appeal must fail though for reasons different from those given by the Board of Revenue and the High Court.
The appeal is dismissed with costs.

dataset_name: IN-Abs

summary/full:
The first and the second respondents purchased a quantity of foodgrains from certain cultivators who had imported them into the municipal area of the appellant Committee and, at the time of importation, had paid octroi duty on those foodgrains.
The first and the second respondents exported the identical goods out of the municipal areas and there upon applied for refund of octroi duty paid on the foodgrains.
The appellant Committee refused to pay the refund mainly on the ground that the respondents had failed to produce the: receipts of duty paid on the importation of the foodgrains.
An appeal to the Additional Deputy Commissioner as well as the revision application to the Board of Revenue were both dismissed, but a writ petition against these orders was allowed by the High Court which held that an, exporter was entitled under r. 27 to the refund of 7/8th of the, duty paid on the goods exported.
Subsequently a Division Bench, in appeal, remanded ' the case to the Board for dealing with certain other contentions raised by the appellant and after considering these, the Board get aside, the orders of the Committee and the Deputy Commissioner and directed payment of the refund.
The appellant Committee then filed a writ petition challenging the ,order of the Board but this was dismissed, the High Court holding, inter alia, that the Rules did not require a claimant who had exported dutiable goods to produce receipts of payment of duty and that the amount of refund is to be determined from the quantity of foodgrains exported or from their value.
The Committee appealed by special leave to this Court.
It was urged on its behalf that a person claiming refund would not be entitled to it unless he had followed the procedure prescribed by rr. 27 to 43, and that this had not been done in the present case.
HELD : Dismissing the appeal Though the rules lay down a procedure which an appellant seeking refund has to follow, they do not provide at the game time that an applicant for refund who has failed do follow the procedure laid down in rr.
35 to 39 would be disentitled to claim the refund.
In the absence of such a provision, coupled with the categorical language of r. 27 giving a right to an exporter of dutiable goods to claim 7/8th of the duty paid on such goods on their import, it becomes difficult to uphold the denial by the appellant Committee of the right of the first ' and the second respondents to such a refund.
[171 E G]


judgement:
minal Appeal No. 189 of 1965.
151 Appeal by special leave from the judgment and order dated September 22, 1965 of the Patna High Court in Government Appeal No. 40 of 1962 with Cr. Revision No. 122 of 1963.
A. section R. Chari, Surendra Prasad and D. Gobardhun, for the. appellants.
R. K. Garg for D. P. Singh, for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
Nine persons were tried for various offences by the 3rd Assistant Sessions Judge, Patna.
The Judge acquitted Ramnath and Madan of all the charges.
He convicted Sheonath, Matukdeo and Sarjoo under sec.
353 of the Indian Penal Code and sentenced them to pay a fine of Rs. 1000 each or in default to suffer imprisonment for six months.
He convicted Satnarayan, Billat, Gullat and Bishwanath under sec.
353 read with sec.
149 and sentenced them to pay a fine of Rs. 200 each or in default to suffer simple imprisonment of three months.
He convicted all of them under sec.
147 but did not pass a separate sentence under it.
He acquitted all of them of the charge under, sec.
The State of Bihar filed an appeal and a revision petition for enhancement of the sentence.
The High Court allowed the appeal and revision petition in part.
It convicted Sheonath, Matukdeo and Sarjoo under sec.
395 and sentenced them to undergo rigorous imprisonment for two years each, enhanced the sentences already imposed on them under sec.
353 by adding a sentence of two years rigorous imprisonment against each of them and directed that the substantive sentences of imprisonment would run concurrently.
It convicted Satnarayan, Billat and Gullat of offences under sec.
395 and sentenced them to undergo rigorous imprisonment for one year each, enhanced the sentences imposed upon them under sec.
153/149 by adding sentences of one years rigorous imprisonment against each of them and directed that the substantive sentences of imprisonment would run concurrently.
It acquitted Bishwanath of all the charges.
Sheonath, Matukdeo, Sarjoo, Satnarayan, Billat and Gullat have filed this appeal after obtaining special leave from this Court.
The courts below have found the following facts : Maheshwar Datta Sharma was the Superintendent of Commercial Taxes (Intelligence Branch) exercising the powers of Assistant Supdt.
of Sales Tax.
He received information that the firm of Mohanlal Sitaram was maintaining incorrect account books at its secret gaddi at Adrakhghat, Marufganj in Patna City.
In the afternoon of May 7, 1959 he with a party of officers and inspectors of the Sales Tax Department raided the premises.
After posting guards at the entrance and with the rest of the party he went upstairs .
In the eastern room he found the munims Sarjoo Prasad ' 152 and Matukdeo writing books of account.
On an examination of the books of account and papers he found that double sets of books of account with discrepant and incorrect entries were being maintained with a view to evasion of sales tax.
He seized the books and papers and packed them in a gunny bag.
A seizure list was prepared.
A copy of the list was offered to Matukdeo who refused to accept it.
In the meantime a mob with the ,common intention of snatching away the seized books of account came upstairs.
At the sight of the mob Sharma and some members of the party bolted the door of the closed verandah.
Gullat, Bill at and Satnarayan and other members of the mob attempted to break open the door of the verandah.
Sharma and his party then went inside the central room with the bag containing the seized accounts books and bolted the door from inside.
The mob broke open a door of the eastern room and went inside to the ,central room.
There Sheonath, Matukdeo and Ramnath snatched 'away the bag from the possession of Sharma.
It may be mentioned that Sheonath was the proprietor of the firm.
These findings of fact are not challenged by Mr. Chari.
The courts below found that the inspection, search and seizure were made by Sharma in the exercise of his powers under sec.
17 of the Bihar Sales Tax Act, 1947.
Mr. Chari attacked this finding.
He contended that (1) the power of inspection, seizure and search under sec.
17 of the Bihar Sales Tax Act, can be ,exercised only in a place of business declared by the dealer under the Act and the Rules and as the Gaddi at Adrakhghat was not ,such a place of business, the inspection, search and seizure were illegal and (2) that Sharma made the search and seizure in the course of an investigation of a cognizable offence, and as there .was contravention of section 165(4) read with section 103 of the Criminal Procedure Code the search and seizure were illegal.
He also pleaded for the mitigation of the sentences.
Our attention was drawn to the relevant provisions of the Bihar Sales Tax Act, 1947 and the Bihar Sales Tax Rules, 1949.
Section.
17 of the Act reads .
"Production and inspection of accounts and documents and search of premises : (1) The Commissioner may, subject to such conditions as may be prescribed, require any dealer to produce before him any accounts or documents, relevant to the financial transactions of a dealer, including accounts or documents relatto profits derived from the business of any firm, or to furnish any information relating to the stocks of goods of, or purchases,; sales and 153 deliveries of goods by, the dealer as may be necessary for the purposes of this Act.
(2) All accounts, registers and documents relating to the stocks of goods of, or purchases, sales.
and deliveries of goods by any dealer and all goods kept in any place of business of any dealer shall at all reasonable times be open to inspection by the Commissioner.
(3) If the Commissioner has reason to suspect that any dealer is attempting to evade the payment of any tax due from him under this Act, he may, for reasons to be recorded in writing seize such accounts, registers or documents of the dealer as may be necessary, and shall grant a receipt for the same, and shall retain the same only for so long as may be necessary for examination thereof or for a prosecution.
(4) For the purposes of sub section (2) or subsection (3) the Commissioner may enter and search any place of business of any dealer.
" Section 3 empowers the State Government to appoint any person to assist the Commissioner of Sales Tax.
Section 9 provides for registration of dealers.
Section , It provides for publication of the list registered dealers.
Section 18 authorises the State Government to delegate the powers of the Commissioners to any officer appointed under sec.
3 to assist him.
19 requires a registered dealer or any other dealer to whom a notice is served under sec.
12(1) to give information of any change of his place of business or the opening of a new place of business.
The maintenance of incorrect accounts is a cognizable offence punishable under sec.
26(1)(g).
Under sec.
27 the Commissioner may authorise any person appointed to assist him under sec.
3 to investigate offences punishable under the Act.
Any person so authorised is required in the conduct of such investigation to exercise the powers conferred by the Criminal Procedure Code upon an officer in charge of a police station for the purpose of investigation of a cognizable offence.
Rule 2(1) defines "place of business" to mean any place where a dealer sells goods or keeps accounts of sales.
Rule 3 provides that an Assistant Commissioner of Sales Tax and a Superintendent of Sales Tax may be appointed under sec.
3(1) to assist the Commissioner.
Rule 4 provides that an application for registration shall be in Form 1.
The proviso to Rule 4 provides that a dealer other than a dealer registered under r. 10(1) having more than one place of business shall make a separate application in respect of every such place.
Rule 10(1) provides for registration of dealers in special circum 10Sup.
C. I/68 11 154 stances.
Form I requires the dealer to state the location of the place of business for which the application is made, a complete list of warehouses in respect of the place of business and a complete list of other places of business of the dealer for which a separate application has been or will be made.
Under Rule 5 a certificate of registration is issued in Form 11.
That form gives the location of the place of business, and warehouses of the dealer.
Rule 11 provide for publication of lists of registered dealers.
The lists give the location of their places of business.
It is to be noticed that in the, application for registration a dealer is required to disclose his place of business.
The place of business disclosed by him is mentioned in the certificate of registration and the list of registered dealers.
But the Act and the Rules no where say that if he has some other place of business, such place cannot be regarded as a place of business.
On the contrary, rule 2(1) defines "Place of business" to mean any place where a dealer sells goods or keeps accounts of sales.
The dealer Mohanlal Sitaram kept accounts of sales at his secret gaddi at Adrakhghat.
The gaddi was therefore a place of business of the dealer.
The Commissioner could inspect the books under section 17(2) seize them under section 17(3) and enter and search the place under section 17(4).
The power of the Commissioner under sec.
17 was delegated to Sharma under sec.
He could therefore lawfully exercise those powers.
We see no ground for holding that the power under sec.
17 can be exercised only in relation to a place of business declared by the dealer in his application for registration.
It is the duty of the dealer to declare all his places of business.
If he has more than one place of business he is required to disclose them and to make a separate application for every such place.
If he changes the place of business or ,opens a new one he is required to give information to the prescribed authority.
The non disclosure of a place of business does not make that place immune from entry and search under sec.
The power under sec.
17 can be exercised in relation to any dealer whether registered or unregistered.
An unregistered dealer is not exempt from the operation of section 17 though he made no, application for registration declaring his place of business.
We are of the opinion that the power of inspection, seizure and ,search under sec.
17 is not limited to a place of business dec lared by a dealer in his application for registration or otherwise and that it can be exercised in respect of any and every place of business.
When a certain place is declared by the dealer as his place of business he cannot be heard to say at a later stage that it is not his place of business.
If the Commissioner enters and searches any other place, he does so at his own peril.
If it turns out that that place is not the place of business of the dealer the Commissioner will be guilty of trespass.
155 We are not satisfied that Sharma made the search and seizure in the course of an investigation of a cognizable offence.
Sharma stated that he was not authorised by the Commissioner under section 27 to investigate an offence.
That is why he did not reduce to writing the information given to him that the dealer was maintaining incorrect accounts and did 'not require the informant to sign a written information.
Only the powers of the Commissioner under sec.
17 was delegated to Sharma.
In making the inspection, search and seizure he was exercising the powers under sec.
He was not investigating or dealing with an offence.
The provisions of sec.
165 (4) read with sec.
103 of the Criminal Procedure Code were therefore not attracted and he was not required to comply with those provisions.
On the question of sentence, we find that both the courts have said that the offence of dacoity was a technical one.
The appellants did not cause hurt to any member of the raiding party.
The appellants have already undergone imprisonments for about a month.
We think that the ends of justice will be met by reducing the sentences imposed by the High Court to the periods of imprisonments already undergone by the appellants.
In the result, the appeal is allowed in part.
The convictions of the appellants by the courts below including their convictions by the High Court under sec.
395 are affirmed.
The sentences under sec.
395 and the enhanced sentences in respect of other offences imposed on the appellants by the High Court are reduced to the period of imprisonment already undergone by them.
The sentences imposed on the appellants by the 3rd Assistant Sessions Judge, Patna, are maintained.
G.C. Appeal partly allowed.

summary/full:
The first appellant 's premises were raided by the Superintendent of Commercial Taxes (Intelligence Branch) exercising the powers of Assistant Superintendent of Sales Tax.
He found a duplicate set of accounts being prepared there and took the various account books into his possession.
The appellant along with others came and snatched away the bundle containing the account books.
The Assistant Sessions Judge as well as the High Court found that the inspection, search and seizure had been made by the Superintendent of Commercial Taxes in purported exercise of his, powers under section 17 of the Bihar Sales Tax Act, 1947.
One of the offences charged against the appellants was that of dacoity under section 395 I.P.C. While the Assistant Sessions Judge acquitted the appellants of this offence the High Court convicted them and sentenced them to two years ' R.I. for it.
In appeal to this Court it was contended : (i) that the power of inspection seizure and search under section 17 can be exercised only in a place of business declared by the dealer under the Act and the Rules and as the place from where the accounts books were seized in the present case was not a place so declared, the inspection, search and seizure were illegal; (ii) that the search was made by the Superintendent in the course of an investigation of a cognizable offence, and as there was a contravention of s.165(4) read with section 103 of the Criminal Procedure Code the search and seizure were illegal; (iii) that the sentences should be mitigated.
HELD : (i) The dealer kept accounts of sales at the place from where they were recovered.
Therefore under the definition in section 2(1) of the Bihar Sales Tax Act the said place was a place of business, and could be lawfully searched by the Superintendent under section 17 read with section 18 of the Act.
The power of inspection search and seizure under section 17 is not limited to a place of business declared by a dealer in his application for registration or otherwise and it can be exercised in respect of any and every place of business.
[154 D G] (ii)In the present case the, Superintendent was only exercising powers under section 17 and was not investigating or dealing with any cognizable or other offence.
The provisions of section 165(4) read with section 103 of the Criminal Procedure Code were therefore not attracted and he was not required to comply with those provisions.
[155 B C]


judgement:
minal Appeal No. 157 of 1965.
Appeal by special leave from the judgment and order dated February 1, 1965 of the Punjab High Court in Criminal Misc.
No. 8 of 1964 in Cr.
Revision No. 1375 of 1963.
Nishat Singh Grewal, Ravindra Bana and O. P. Rana, for the appellants.
R. N. Sachthey, for the respondent No. 2.
The Judgment of the Court was delivered by Sikri, J.
This appeal by special leave is directed against the judgment of the High Court of Punjab dismissing Criminal Miscellaneous Petition No. 8 of 1964.
This petition arose out of the following facts.
Bhagwant Rai and Chhota Ram were tried, under section 325, I.P.C., read with section 34, I.P.C., in the Court of Shri Harish Chander Gaur, Magistrate 1st Class, Patiala.
Ajaib Singh, Sub Inspector, one of the appellants before us, had investigated the case.
The Magistrate, by his order dated April 5. 1957, acquitted both the accused and, inter alia, observed that Bhagwant Rai had been falsely implicated in the case as he was not even present on the, day of the occurrence at Patiala.
On the application of Bhagwant Rai, Shri Joginder Singh 'Karam garhia ', Magistrate 1st Class, Patiala, who succeeded Shri Harish Chander Gaur, filed a complaint under sections 193, 195, 211 and 120B, I.P.C., on October 31, 1958, against six persons including the appellants, Ajaib Singh and Malkiat Singh.
Shri O. P. Gaur.
Magistrate First Class, by his order dated June 1, 1959, discharged the accused, holding that the complaint was not competent as it was barred by sub section
(6) of section 479A, Cr.
P.C., because the, complaint had not been filed by or directed to be filed by Shri Harish Chander Gaur, who had disposed of the case ending in the acquittal of Bhagwant Rai.
In the revision filed against this order the Additional Sessions Judge upheld this view.
The High Court (Capoor, J.), on revision, found it unnecessary to consider the, scope of section 479A, Cr.
P.C., vis a vis section 476, Cr. P.C., because two of the offences mentioned in the complaint, namely.
s.211 and section 120B, I.P.C., did not fall within the purview of s.479A. Capoor, J., further held that section 42 of the Police Act.1861, had no application to a case in which a complaint was made by the Court under section 476, Cr.
P.C. Capoor, J., also held that as the order of Shri Joginder Singh, Magistrate, directing the making of the complaint against the respondents was not appealed from and had become final, the competency of the Court to make the complaint under section 211, I.P.C., against Jaswant Singh, one of the accused, could not be considered at that stage.
The High 147 Court accordingly set aside the order of the learned Additional Sessions Judge and directed that the respondents be proceeded against according to law.
On the case going back fresh objections were filed before the Magistrate trying the case but these were overruled.
Revision was filed before the Additional Sessions Judge who accepted the prayer of Kirpal Singh and recommended to the High Court that the criminal proceedings pending against him in the Court of Magistrate First Class, Patiala. might be quashed.
He, however, declined to interfere with the proceedings pending against the appellants mainly on the ground that the objections now taken by them before the Trial Magistrate had been heard and finally disposed of by Capoor, J., in his order dated April 4, 1961.
In the meantime, the appellants put in Criminal Miscellane ous Petition No. 8 of 1964, in criminal revision, in the High Court, praying that along with the recommendation made by the learned Additional Sessions Judge, Patiala, for quashing the criminal proceedings against Kirpal Singh, the grounds urged by them might also be taken into consideration.
Capoor, J., accepted the recommendation made by the learned Additional Sessions Judge, Patiala, and quashed the criminal proceedings against Kirpal Singh.
He, however, directed that Criminal Miscellaneous Petition No. 8 of 1964 should be placed before another Bench for disposal.
The matter was then placed before Sharma, J., who held that all the points urged in Criminal Miscellaneous Petition had been taken into consideration and repelled by Capoor, J., in his order dated April 4, 1961.
Sharma, J., observed : "The learned counsel, however, omitted to take note of the fact that the revision petition finally was accepted in the terms, 'As the order under revision is not legally sustainable, it must be set aside and the respondents must be proceeded with according to law. ' Therefore, what the order (said) was that the criminal case as a whole was to proceed against all the respondents and so the petitioners could not be heard now to say that the case was remanded to the trial court for trial of the respondents for offences punishable under sections 211 and 120 B of the Indian Penal Code.
In the circumstances, the trial Court cannot be said to have misconstrued the order of Capoor, J., The other grounds urged by them in the Criminal Miscellaneous as already pointed out by me were taken into consideration by Capoor, J., and findings given against the petitioners and that being so, these cannot be agitated again at this stage.
" 148 He accordingly dismissed the Criminal Miscellaneous Petition.
The appellants having obtained special leave, the appeal is now before us.
The learned counsel for the appellants contends that on the facts prosecution for offences under sections 193 and 195, I.P.C., was barred under section 479A(6), Cr.
In our opinion, this contention must be accepted in view of the ruling of this Court in Shabir Hussain Bholu vs State of Maharashtra(1) and Baban Singh vs
Jagdish Singh(2).
The learned counsel next contends that the complaint could only be filed by the Magistrate before whom the original proceedings were taken.
He says that according to section 195 (1) (b), Cr. P.C., a complaint in respect of sections 193, 195 and 211 I.P.C., can only be made by the Court in which the proceedings out of which the offences arose took place.
We see no force in this contention.
Section 559 enables a successor in office of a Magistrate to file a complaint.
The relevant portion of section 559 reads as follows : "559.
(1) Subject to the other provisions of this Code, the powers and duties of a Judge or Magistrate may be exercised or performed by his successor in office.
(2) When there is any doubt as to who is the successor in office of any Magistrate, the Chief Presidency Magistrate in a Presidency town, and the District Magistrate outside such towns, shall determine by order in writing the Magistrate who shall, for the purposes of this Code or of any.
proceedings or order thereunder, be deemed to be the successor in office of such Magistrate." This section was substituted for the original section 559 by the Code of Criminal Procedure (Amendment) Act (XVIII of 1923).
Since the amendment it has been held, and we think rightly, that a successor in office of a Magistrate can file a complaint under section 476, Cr.
P.C., in respect of an offence under section 195, I.P.C., committed before his predecessor.
(See Behram vs Emperor(3) Bara Bapen Manjhi vs Gopi Manjhi(4) and In re: Subramaniam Chettiar(5).
This section applies to all Magistrates and there is no reason why the plain terms of the section should be cut down to limit it, as suggested by the learned counsel for the appellant, to Magistrates whose courts are permanent.
It seems to us further clear that sub s.(2) has not the effect of limiting s.559(1).Section 559(2) applies when there is a doubt as (1) [1963] Supp. 1 S.C.R. 501.
(3) 108.
(2) A.I. R. (4) A. 1.
R. 1927 Pat.
(5) A. 1.
R. 149 to who the successor is, and that doubt can be resolved in the manner laid down in sub section
The sub section does not mean, as contended by the learned counsel, that until a successor is determined under sub section
(2) there is no successor for the purposes of sub section
If there is no doubt about who the successor is, then that person can exercise the powers under sub section
We accordingly hold that the complaint was properly filed by Shri Joginder Singh 'Karamgarhia ', Magistrate.
There is equally no force in the third point raised by ,,he learned counsel that section 42, Police Act, creates a bar and the prosecution is time barred under this section.
This Court held in Mulud Ahmed, vs State of U.P. (1) that section 42, Police Act, does_not apply to prosecutions under the Indian Penal Code or other Acts.
Subba Rao, J., as he then was, observed "The period of three months prescribed for commencing a prosecution under this section is only with respect to prosecution of a person for something done or intended to be done by him under the provisions of the Police Act or under general Police powers given by the Act.
Section 42 does not apply to prosecution against any person for anything done under the provisions of any other Act.
A combined reading of these provisions leads to the conclusion that section 42 only applies to a prosecution against a person for an offence committed under the Police Act. but the prosecution in the present case was for an offence under section 212 of the Indian Penal Code which is an offence under a different act and for which a much higher punishment is pres cribed.
By reason of section 36 of the Police Act, section 42 thereof cannot apply to such a prosecution.
" The fourth point which the learned counsel urges is that the complaint only discloses two offences under section 193 and section 195, I.P.C., and no other, and it was an abuse of the process of the Court.
There is no force in this contention as the complaint on its face mentions sections 193, 195, 211 and 120B.
The learned counsel finally urges that the complaint had been filed because of a private feud and it is not in the interest of justice that the complainant should be allowed to proceed with the complaint.
This point was not taken in the High Court at any stage and we do not allow it to be raised at this stage.
In the result the appeal fails and is dismissed.
Y.P. Appeal dismissed.
(1) [1963] Supp. 2 S.C.R. 38, 44 45.

summary/full:
A magistrate acquitted Bhagwant Rai of the charge under sections 325/34 I.P.C. and observed that he had been falsely implicated.
The magistrate 's successor in office the respondent filed a complaint under sections 193, 195, 211 and 120B I.P.C., against the appellants.
The appellants con tended that (i) prosecution for offences under sections 193 and 195 I.P.C., was barred under section 479A(6) Cr.
P.C.; (ii) according to section 195(1)(b) Cr.
P.C., only the Magistrate before whom the original proceedings were taken could file the complaint in respect of sections 193, 195 and 211 IPC;(iii)s.
42 of the Police Act barred the prosecution as it was commenced after the period prescribed; and (iv) the complaint only disclosed two offences under sections 193 and 195 I.P.C. and no other.
HELD:The appeal must be dismissed.
(i) In view of the ruling of this Court in Shabir Husain Bholu vs State of Maharashtra and Baban Singh vs Jagdish Singh, the prosecution for offences under sections 1913 and 195 IPC was barred under section 479A(6) Cr.
P.C. [148 B] (ii) The complaint was properly filed by the successor in office of the Magistrate.
Section 559 Cr.
P.C. enables a successor in office of a Magistrate do file, a complaint.
This section applies to all Magistrates.
and there is no reason to limit it to Magistrates whose courts are perma nent.
Sub section
(2) has not the effect of limiting section 559(1).
Section 559(2) applies when there is a doubt as to who the successor is, and that doubt can be resolved in the manner laid down in sub s.(2).
The subsection does not mean that until a successor is determined under sub s.(2) there is no successor for the purpose of sub section
[148 F H;149 A] Behram vs
Emperor, 108; Bara Bapen Manihi vs Gopi Manjhi, A.I.R. 1927 Pat.
(In re: Subramanian Chettiar, A.I.R. 1957 Mad. 442, followed.
(iii) Section 42 of the police Act does not apply to prosecutions under the Indian Penal Code or other Acts.
[149 C] Mulad Ahmad vs State of U.P., [1963] Supp. 2 S.C.R. 38, 44 45 followed.
(iv) As the complaint on the face of it mentioned sections 193, 195, 211 and 120B, so there was no force.
in the contention that the complaint only disclosed two offences under sections 193 and 195 I.P.C. and no other F149 F] 146