Shri Nemi Chand Jain vs The State of Bihar and Another

S.B. Sinha, J.—This application is directed against an order dated 2.12.1985 passed by Shri G.P. Singh Sub-Divisional Magistrate Giridih in case No. 144/85 passed u/s 133of the Code of Criminal Procedure. In the application it has been stated that Mr. G.P. Singh was merely an Executive Magistrate and not the Sub-Divisional Magistrate of Giridih. It was further stated that the Sub-Divisional Magistrate of Giridih is one Shri Sheo Mangal Sharma.

Mr. R.N. Sahay, learned counsel appearing on behalf of the petitioner contended that as the aformentioned Mr. G P. Singh was neither a Sub-Divisional Magistrate nor an Executive Magistrate specially empowered in this behalf, he had no jurisdiction to initiate a proceeding u/s 133of the Code of Criminal Procedure.

Learned counsel, in this connection has relied upon a decision of this Court in Chaudhary Mandal v. Chhedi Mandal reported in 1985 B.B.C.J. 726 : 1985 P.L.J.R. 706.

Mrs Jaya Roy, appearing on behalf of the State raised a technical objection only to the effect that the affidavit in support of this petition has been sworn by a person residing at Doranda and as such he can not be said to be competent to swear the affidavit in support of the said petition.

Mr. B.M. Prasad, learned counsul appearing on behalf of the opposite party No. 2 submitted that in the instant case as the learned Magistrate was Sub-Divisional Magistrate and holding sawalkhaui on that date he must be held to nave jurisdiction to initiate the proceeding u/s 133of the Code of Criminal Procedure.

Section 133of the Code of Criminal Procedure categorically provided that only three authorities, namely the District Magistrate, Sub-Divisional Magistrate or any other Executive Magistrate specially empowered in this behalf by the State Government, may pass an order u/s 133of the Code of Criminal Procedure.

A learned Single Judge of this Court taking into consideration the aforementioned provisions contained in Section 133of the Code of Criminal Procedure in Chaudhary Mandal v. Chhedi Mandal reported in 1985 B.B.C.J. 726 : 1985 PLJR 706 and relying on a decision of a Division Bench of this Court in Kanhai v. Budhan reported in 1978 B.B.C.J. 136 has come to the conclusion that an Executive magistrate who has been doing the work of sawalkhani on a particular date is not the sucessor the court of Sub-Divisional Magistrate.

Apart from the aforementioned decision it appears that the Sub-Divisional Magistrate can only be appointed by the State of Bihar in terms of Section 20 (4) of the Code of Criminal Procedure which reads as follows :--

The State Government may place an Executive Magistrate in charge of a Sub-Division and may relieve him of the charge as occasion requiries; and the Magistrate so placed in charge of a sub-division shall be called the sub-divisional Magistrate.

From a perusal of the aforementioned provision it is absolutely clear that before an Executive Magistrate can become a Sub-divisional Magistrate to be put in charge of the subdivision by a notification issued in this behalf by the State and. (sic) it is thus clear that admittedly as temporary absence of Sub-divisional magistrate who has been notified to be in charge of the Sub-division in terms of Subsection 4of section 20of the Code of Criminal Procedure he does not cease to be Sub-divisional Magistrate only because he does not hold court on a particular date.

Further more, some Executive Magistrate who are specially empowered in this behalf by a notification issued by the State of Bihar are also entitled to pass an order u/s 133of the Code of Criminal Procedure but it is needless to reiterate that such power has to be specifically conferred.

In this view of the matter, I am in camplete agreement with the decision cited at Bar.

The contention raised by Mrs. Jaya Roy has no substance in view of the fact that statements made in paragraphs 4 and 5 of the petition have been verified as being true to knowledge of the deponent aforementioned.

Only because under the signature of Shri G.P. Singh the words Sub-Divisional Magistrate have been mentioned is not conclusive, in view of the fact that not has subsequent order dated 1-2-1985, it appears that one D.N. Shukla has also signed as the Sub-divisional Magistrate.

Nothing has been brought on records to show that Shri G.P. Singh, at the relevant time was either Sub-Divisional Magistrate or an Executive Magistrate specially empowered in this behalf to pass an order u/s 133of the Code of Criminal Procedure.

In this view of the matter, the impugned order can not be sustained.

However, the matter may again be placed before the competent authority who will satisfy himself as to whether in the facts and circumstances of the case a proceeding u/s 133of the Code of Criminal Procedure should be initiated or not. With the aforementioned observations this application is allowed.