Authored By : Robert Fulton Rampini, J. Pratt

Robert Fulton Rampini and J. Pratt, JJ.

1. This is a rule to show cause why an order of a PresidencyMagistrate passed under Act XIII of 1859 should not be set aside and the caseretried. The order is under Section 3, directing the defendant to give arecognizance in the sum of Us. 50 to return to his work. The petitioner is aaurzi, who, it is said, entered into a stamped agreement to work for theopposite party. He left him to work for another employer, who gave him higherpay. The opposite party accordingly complained against him under Section 1 ofthe Act. The Magistrate under the first clause of Section 2 ordered him toreturn to his work, and under Section 3 directed him to execute therecognizance mentioned above.

2. The learned pleader, who appears for the petitioner,urges (1) that the evidence has not been properly recorded; and (2) that theMagistrate has written no judgment. He, however, has not been able to show usany section of Act XIII of 1859, or of the Criminal Procedure Code, prescribinghow evidence in a case of this nature should be recorded or requiring ajudgment to be written. He cited two cases-Pollard v. Mothial I.L.R (1881)., 4Mad., 234, and Queen-Empress v. Indarjit I.L.R (1889) ., 11 All., 262,--in theformer of which it is ruled that inquiries under Section 2 of Act XIII of 1859cannot be made summarily, while in the latter it is held that offences underSection 2 of Act XIII of 1859 can be tried summarily. These oases are,therefore, in direct conflict. The former of them, while laying down that suchcases cannot be tried summarily, does not explain how they are to be tried,except that, it is said, they should be conducted "with care andpatience." The latter is no guide to us in this rule, as it applies toMofussil Magistrates and not to a Presidency Magistrate. We are accordinglyunable to accede to the learned pleaders contention that the Magistrate wasbound to frame his record in this case in accordance with the provisions ofSection 370 of the Criminal Procedure Code.

3. Sub-section (3) of Section 2 of the Code of CriminalProcedure prescribes that "the provisions of this Code shall apply to allproceedings instituted after the commencement of this Code." This mustmean criminal proceedings, otherwise the Code would be applicable to all civilproceedings, which cannot be. Now, is a proceeding under the first clause ofSection 2 and under Section 3, Act XIII of 1859, a criminal proceeding It maybe that an order passed under the second clause of Section 2 of the Act bywhich a workman may be imprisoned for three months is a criminal proceeding,but it seems doubtful if the order in this case, which is one not under thesecond clause of Section 2, can properly be so called.

4. Further, the provisions of Section 370 appearinapplicable to a case of this nature, (1) because no offence has beencommitted; and (2) because there is no accused.

5. Finally, there would appear to us to be no merits in theapplicants case. The order of the Magistrate shows that the complainant andone witness were examined. They proved the execution of the agreement by thepetitioner. It is not denied that he has broken this contract or that he is aworkman to whom the Act is applicable. It would accordingly seem that he isliable to be called upon under Section 3 to execute a recognizance, and weunderstand he has executed the recognizance required of him.

6. In these circumstances it seems to us that this is not acase in which it is necessary for us to exercise our discretionary power ofrevision. We discharge this rule.

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Averam Das Mochi vs.Abdul Rahim (23.08.1899 - CALHC)