Patna High Court
Baijnath Prasad Singh vs State Of Bihar on 26 July, 1956
Equivalent citations: 1957CRILJ677
ORDER Imam, J.
1. This is an application in revision against the order of the learned Additional Sub-divisional Magistrate directing that action should be taken against the petitioner to realise the sum of Rs. 4,700/- by virtue of the powers conferred on the Court under Sections 547 and 386 of the Code of Criminal Procedure.
2. It appears that there is an estate known as Malpur Piparia which was attached under Section 146 of the Code of Criminal Procedure, and it is being managed by the attached estate department. This estate comprises of 107 bighas of bakasht lands, and these lands are annually settled by public auction. It is said that on 20th October 1954, these lands were settled by public auction for one year and the petitioner Baijnath Prasad Singh was the highest bidder who had agreed to pay Rs. 7,600/-.
The bid was knocked down in his favour and it was ultimately approved by the Additional Collector. According to the terms of the settlement, one-fourth of the bid money was to be paid immediately, and the balance by 30th October 1954. It is said that the petitioner was to have deposited Rs. 1900/- being the one-fourth of the total amount of the bid, but he deposited Rs. 1400/- on 20th October 1954 and prayed for three days' time to deposit the balance and also undertook to deposit the entire sum by 30th October 1954.
This prayer was allowed, and the petitioner then deposited Rs. 500/- only. Thereafter the Sub-divisional Magistrate directed that the sum of Rs, 4700/- be realised from the petitioner by issuing a certificate under the Public Demands Recovery Act. At this the petitioner protested saying that the Sub-divisional Magistrate had no jurisdiction to start a certificate proceeding under the said Act, but the Sub-divisional Magistrate took no notice of this; and an appeal was preferred before the Additional Collector of Monghyr who upheld the order of the Sub-divisional Magistrate. Thereafter, a criminal revision was filed in this Court, namely, Criminal Revn. No. 605 of 1955(Pat)(A).
This Court was pleased to direct that the order of the learned Magistrate directing the recovery of the amount of Rs. 4700/- by filing a certificate under the Public Demands Recovery Act he set aside. In the judgment, however, some mention was made that an order for recovery of the said sum could be passed under Section 547 of the Code of Criminal Procedure. The Sub-divisional Magistrate finding this immediately proceeded under Section 547 and passed the order complained against which I have stated above.
3. Mr. Prem Lall appearing on behalf of the petitioner submits that once the certificate proceeding was quashed by this Court, it was not open to the learned Magistrate to proceed under Section 547 of the Code of Criminal Procedure as Section 547 only empowers the Court to pass an order that any money other than a fine payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine.
The question therefore, that arises for consideration, is whether there was any order under the Criminal Procedure Code which would justify invoking the provisions of Section 547. From the facts stated above, it is quite clear that the petitioner had agreed to pay the balance of the bid money, but he failed to do so. The order for recovery of that sum was not under the Criminal Procedure Code at all, and I doubt if it can possibly be considered to be a judicial order.
It is true that the attachment may have been made under Section 146 of the Code, but that will not empower the learned Magistrate to pass an order for recovery of the balance of the bid money under this Code. That order must be deemed to be an executive order and nothing else. In other words, there is no money recoverable which is payable by virtue of an order under this Code, and once that is so, Section 547 can have no application whatsoever. In this connection it would be well to refer to an unreported Division Bench decision of this Court in Janardan Prasad v. The State Cri. Revn. No. 1250 of 1950, D/- 27-8-1951 (Pat)(B). In that judgment, Imam, J. (as he then was) with whom Narayan, J. agreed, observed as follows:
The proceedings under Section 145 of the Code of Criminal Procedure were pending before the Sub-divisional Magistrate and had not concluded when the order issuing a distress warrant was passed by the Magistrate. It is quite true that so far as orders concerning settlement, acceptance of the bid money at an auction sale of the attached lands are concerned, they may be regarded as administrative and incapable of interference by a Court of law.
Where, however, in proceedings under Section 145 of the Code of Criminal Procedure the Magistrate, before whom those proceedings are pending chooses to issue a distress warrant against an. individual, I think there can be no question that that order must be regarded .as a judicial order and not an administrative one. Such an order affects the rights of the individual and subsequently may affect his property and those interested in that property. This order cannot, in my opinion, be regarded as an order passed in connection with the auction bid, It is an order which in effect calls upon a person to either deposit the bid money, which that person is not prepared to do for various reasons, or to have his property attached for the realisation of he money which the Court thinks is due. Mr. Verma had referred to a decision of this Court in the case of Sabeb Tewari v. Emperor AIR 1919 Pat 203(C). It seems to me, however, that that case has no relevancy whatever.
In that case, the proceedings under Section 145 of the Code had terminated with an order under Section 146 of the Code, that is to say, the proceedings had ended and the property was put within the custody of the Court until the rights of the parties had been decided by a civil Court. In such a case there was no judicial proceeding pending before the Court, and in that sense orders passed in connection with the settlement of the property under attachment may be regarded as administrative.
In the present case, however, the proceedings tinder Section 145 of the Code were definitely pending before the Magistrate. Therefore, there was a judicial proceeding pending in the Court of the Magistrate, and in the course of that proceeding an order had been passed directing the issue of a distress warrant upon the petitioner. I have no hesitation in my own mind that the order made by the Sub-divisional Magistrate on 1st of May, 1950, by which ' he issued a distress warrant against the petitioner for the realisation of the bid money was a judicial order and capable of revision by this Court, if found to be illegal.
4. It will be noticed that the order of the learned Sub-divisional Magistrate directing the recovery of the balance of the bid money under the Public Demands Recovery Act was quashed. Therefore there existed no order whatsoever, for the recovery of the same. Even if it be assumed for the sake of argument that the order of the learned Magistrate directing the recovery of the balance of the bid money is a judicial order, because it may be treated more or less in the nature of a distress warrant, it cannot now be said that such a judicial order existed since this Court has already quashed that order. What order then did exist under the Code which would justify the learned Magistrate in proceeding under Section 547, Cr. P. C.? I have great doubt in my mind whether the order of the learned Magistrate directing that the balance of the bid money should be recovered is a judicial order at all. It is certainly not a judicial order under the Code of Criminal Procedure. As I have already said, even if it be assumed that such an order is a judicial order and is under the Code, there was no order existing since that order directing the recovery of the bid money under the Public Demands Recovery Act had been quashed. Section 547 of the Code of Criminal Procedure contemplates that previous to the passing of any order under Section 547 there must be some order existing under the Code by virtue of which money is payable. When the order of the learned Magistrate under the Public Demands Recovery Act had been quashed, what order existed by which it could have been said that the money was payable, much less whether any order existed under the Code to that effect? Hence, it is quite clear, in my opinion, that the order under Section 547 of the Code of Criminal Procedure was without jurisdiction and must, therefore, be set aside. The application is accordingly allowed.