Patna High Court
Singeshwar Singh And Ors. vs State Of Bihar And Ors. on 22 September, 1975
Equivalent citations: 1976CRILJ1511
Author: Nagendra Prasad Singh
Bench: Nagendra Prasad Singh
JUDGMENT S. Sarwar Ali, J.
1. The important question for consideration in this writ application is the true effect of the Bihar Executive Magistrates (Temporary Powers) Ordinance 1974, (hereinafter referred to as the Ordinance) and Act 23 of 1975 (hereinafter referred to as the Act), which followed the aforesaid Ordinance. The other question of importance is whether the circular issued by the District Magistrate of Bhagalpur, a copy of which is annexure 9 to this writ application is legal and valid.
2. The facts giving rise to this writ application are as follows: First information report was lodged on 15-11-1974 by respondent No. 6 before the police officer, incharge Rajoun P. S. leading to start of case no, 6 (II) 74 under Sections 147, 148, 384, 435 and 427 of the Indian Penal Code. The police sent the first information report to the Sub-divisional Magistrate, Banka, which was received on 18-11-1974. The Sub-divisional Officer ordered the matter to be put up on 30-11-1974. On 21-11-1974 the petitioners appeared and surrendered before the Sub-divisional Judicial Magistrate, Banka, and prayed for bail. Provisional bail was granted by the said court till 6-1-1975 as the learned Sub-divisional Judicial Magistrate had not till then received the first Information report (F.I.R.). On 22-11-1974 a petition was filed before the Sub-divisional Magistrate by the informant praying that the case should also be treated to be one under Section 307 of the Indian Penal Code. A prayer was also made for issue of warrant of arrest against the petitioners which prayer was allowed. On 1-12-1974 the petitioners prayed for stay of operation of the order aforesaid. The petitioners were directed to obtain stay order and the case wag directed to be put up on 30-12-1974. On 23-12-1974 this writ application was filed which was admitted on 4-1-1975 and the operative part of the order of the Sub-divisional Magistrate dated 11-12-1974 was stayed.
3. On 1-11-19-74 the Ordinance was promulgated. On 6-11-1974 the District Magistrate issued instructions which are contained in Annexure-9. This executive instruction inter alia, states that (a) in respect of the offence punishable with a fine/or imprisonment for three months, the cases were to continue in the court of Executive Magistrates till final disposal; (b) in respect of other cases i.e. case punishable with more than three months of imprisonment, the cases were to be entertained by the courts of Executive Magistrates till completion of investigation. Thereafter the charge-sheet/final report and other case records were to be forwarded along with the accused to the Judicial Magistrate empowered to take cognizance of the offence; (c) in respect of the aforesaid cases the Executive Magistrates could till the stage of cognizance exercise powers under Sections 61, 62, 68, 70, 71, 72, 79, 80, 82, 83, 85, 87, 88, 91, 93, 104, 172, 436 and 437 of the Criminal P. C. The Executive Magistrates were directed by this instruction to accept first information report (F.I.R.) in respect of all offences and exercise their powers of remand and other incidental powers.
4. The petitioners challenge the validity of these instructions on the basis of which it is said that the Sub-divisional Magistrate is proceeding with the case. The petitioners also challenge the legality of the orders passed by the Sub-divisional Magistrate on 22-11-1974 and 11-12-1974.
5. The Ordinance, in its preamble states that it was necessary to take immediate action to provide temporary powers to Executive Magistrates for dealing with matters relating to the maintenance of law and order and preservation of public peace and tranquillity in the State, The main provision of the Ordinance is as follows:
2. Provision of temporary powers to Executive Magistrates : Notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (Act II of 1974) -
(i) The Executive Magistrates may in addition to the Judicial Magistrates, also exercise powers of remand under Section 167 of the said Code, and
(ii) The Executive Magistrates may also take cognizance of any class or category of offences punishable with fine and/ or imprisonment upto 3 months and may try and dispose of cases relating such offences.
This Ordinance was followed by Act 23 of 1975. So far as the relevant provision quoted above is concerned, there is no difference between the Ordinance and the Act, except that in the English version the word 'and' is not there after Section 2 (i) although in the Hindi version we find the expression "Tatha" (And).
6. The learned Counsel for the petitioners contends that the power of remand as envisaged in Section 2 (i) can be exercised by Executive Magistrates only in relation to class and category of offences as mentioned in Section 2 (ii). In other words in case of offences not punishable with fine and/or imprisonment upto three months, the Ordinance and the Act do not authorise an Executive Magistrate to exercise power of remand in respect of a person accused of such offences. In support of the contention learned Counsel emphasised that the use of expression 'and' after Section 2 (i) indicates that the two sub-sections are conjunctive, and it is in relation to offences mentioned in Section 2 (ii) that the power under Section 2 (i) is exercisable. He further contended that Section 167 (I) requires production before the nearest Judicial Magistrate. That being the position, since production for offence not covered by Section 2 (ii) could only be before a Judicial Magistrate, the Executive Magistrate could not exercise power of remand in respect to such persons, 7, I do not find either of the arguments convincing. The Ordinance and the Act clearly confer two separate and distinct powers on the Executive Magistrates. The first power is the power of remand under Section 167 of the Code, while the other is the power to take cognizance, try and dispose of certain class of cases. I do not find any justification for holding that the first power is confined to the class of cases covered by Section 2. (ii), where a power distinct from and independent of power of remand has been conferred. The language, in my view, is clear and unambiguous. There is no justification for cutting down the wide language of Section 2 (i) and to virtually introduce words in the sub-section which are not there. It is well recognised rule of construction that words should be given their plain and natural meaning. Giving to the words of Section 2 (i) their plain meaning I do not see how the powers contemplated therein can be said to be restricted to certain class of offences only.
8. Examining the question even in the light of the "mischief rule" established in Heyden's case, (1584) 3 Coks 7 (a) which has been repeatedly approved by the Supreme Court, I come to the same conclusion. The preamble of the Ordinance indicates, the necessity for the ordinance It was to deal with the law and order situation and preservation of public peace and tranquillity in the State that powers which were ordinarily to be exercised by Judicial Magistrates were being temporarily given to Executive Magistrates. A perusal of first Schedule of the Code which contains the classification of offences would show that most of the offences for which only fine or imprisonment upto three months was prescribed as punishment are unconnected with the maintenance of law and order or preservation of public peace and tranquillity. It is clear, therefore, that the power of remand conferred on Executive Magistrates by these temporary legislations could not, in view of the preamble aforesaid be said to be confined to offences where fine or imprisonment upto three months was the prescribed punishment.
9. The contention of the learned Counsel that the use of expression 'and' between Section 2 (i) and Section 2 (ii) shows that they are conjunctive does not, in my opinion, appear to be correct. When it is said that a person shall exercise power "X" and power "Y" it does not mean that it is only in relation to power of "Y" that power of "X'" is exercisable. The word 'and' is ordinarily dis-conjunctive and not conjunctive; and unless there is anything in the context (and there is none in the instant case) which requires a different meaning, the use of word 'and' would indicate that two separate and distinct matters were under contemplation.
10. Section 167 (1) also does not, in my view, help the contention of the learned Counsel. It is true that this subsection requires forwarding of the accused before the nearest Judicial Magistrate. But in order to exercise the power of remand it is plain that production is necessary. When it is said that "notwithstanding anything to the contrary contained in the Code of Criminal Procedure 1973" the power of remand is given, it clearly means that none of the provisions in the Code, which includes Section 167 (1), shall stand in the way of the exercise of the power. I am thus of the view that the Ordinance and the Act authorise Executive Magistrates to exercise power of remand under Section 167 of the Code even in respect of offences which were not punishable with fine and/ or imprisonment upto three months.
11. It is, now, necessary to examine the extent and scope of the power of remand. Section 167 (2) makes it quite clear that detention of accused can only be ordered under Section 167 (2i) for a term not exceeding beyond fifteen days in all. Power of remand beyond fifteen days is not permissible under the provision of Section 167 (2) of the Code. This Is well settled. Under the old Code during the pendency of investigation remand was possible in exercise of power under Section 344 of the Code of Criminal Procedure, 1898, as pointed out by the Supreme Court in Natabar Parida v. State of Orissa . Even the previous decisions of the Supreme Court establish that power of remand by a Magistrate during the pendency of investigation was exercisable under Section 344 of the old Code and not under Section 167 of the Code. So far as the new Code is concerned the position appears to be that the power of remand, only after the taking of cognizance, is covered by Section 309 (2) of the new Code. But so far as the power of remand before taking of cognizance Is concerned the relevant provision is the proviso to 5.167(2). Section 167 (2) authorises remand upto a maximum period of fifteen days, but as explained, in Natabar Parida's case, further remand is permissible in view of the proviso to Section 167 (2) of the Code. But this very case explains that the expression 'Magistrate' in the proviso means the Magistrate having jurisdiction to try the case. It is thus clear that although the power of remand upto fifteen days may be exercised by a Magistrate who does, not have jurisdiction to try the case, the power of remand thereafter can only be exercised by a Magistrate who has such a jurisdiction. That being the position it follows that an Executive Magistrate cannot order remand of an accused who has been produced before him in conformity with the provisions of Section 2 (i) of the Code for a period exceeding fifteen days in all. The direction of the District Magistrate that matters have to remain pending before the learned Magistrate till the completion of the investigation is, therefore, clearly illegal and contrary to the provisions of the Code. Whether the Magistrate is of the view that further detention of the accused is unnecessary, or is of the view that further detention is necessary for the purpose of completion of investigation, he must forward the accused to a Magistrate having jurisdiction to try him in view of the fact that power of remand exercisable under Section 167 (2) is restricted only upto fifteen days.
12. It would be- next necessary to consider whether an Executive Magistrate had power to grant bail to a person who has been produced before him or who has been remanded by him in exercise of powers, under Section 2 (i) of the Act, although he does not have jurisdiction to try him. In my view, he does not have such power. The power to grant bail is contained under Sections 436 and 437 of the Code. The power to grant bail given under the sections vests in the court before whom an accused appears and is brought. The expression 'Court' here means Court which has power to take cognizance of the case. It does not mean a court which has no power to take cognizance and has only power of remand under Section 167 (2'). A reading of Section 436 reinforces this conclusion. Section 436 states, when any person appears or is brought before a court and he is prepared, at any stage of the proceeding before such Court, to give bail such person shall be released on bail. The expression "at any stage of the proceeding before such court" clearly indicates that the court envisaged under the section is the court having jurisdiction to take cognizance or try the case. In this very context it- may be observed that the provision of Section 157 requires the officer incharge of police-station who has reason to suspect the commission of an offence which he is empowered under Section 156 to investigate to forthwith send a report of the same to a Magistrate empowered to take cognizance of such offences. It is, therefore, clear that the first information report has to be forwarded to the Magistrate who has power to take cognizance and not to the Executive Magistrate before whom an accused may have been produced in view of Section 2 (i) of the Act. Indeed all that Section 167 requires is that the officer incharge or police-officer making investigation shall transmit a copy of the entries in the diary and does not require forwarding of the first information report, which as already noticed, has to be forwarded to the Magistrate having jurisdiction to try the case.
13. The power of remand conferred on Executive Magistrate already explained, is very restricted power. That does not embrace the exercise of powers under the various sections as mentioned in the executive instruction (Annexure-9), which instruction is contrary to law and not permissible in view of my interpretation of the relevant provisions of the Act and the Code. In view of the discussion aforesaid it is clear that the orders passed by the Subdivisional Magistrate on 22-11-1974 and 11-12-1974 are not legal and are not authorised by law. He had no power to decide whether the petitioners could be prosecuted under Section 307 of the Indian Penal Code nor did he have power to issue warrant of arrest.
14. One other matter needs clarification. It is in respect of grant of bail to a person who has been remanded by an Executive Magistrate. I have already held that an Executive Magistrate has no jurisdiction to grant bail except in respect of offences punishable with fine and/or imprisonment upto three months. In relation to a person not accused of such offences, in my view, the Magistrate, who has jurisdiction to take cognizance, has power to grant bail even when the accused is in custody on the basis of an order of remand passed by an Executive Magistrate.
15. In the result, this application is allowed, the orders of the Subdivisional Magistrate dated 22-11-1974 and 11-12-1974 are quashed. Annexure-9 is also quashed to the extent indicated above. The Sub-divisional Judicial Magistrate shall be entitled to consider the question to grant of bail to the petitioner on merit when he appears before him.
Nagendra Prasad Singh, J.
16. I agree.