Authored By : Mookerjee, Ernest Edward Fletcher, Chatterjea,Thomas William Richardson, S.C. Ghose

Mookerjee, A.C.J.

1. The events which have led up to the present Rule havebeen fully narrated in the judgment delivered by Mr. Justice Chatterjea and Mr.Justice Cuming, on the 2nd July 1920, in the case of Ali Mohammad Mondal v.Fakiruddi Munshi (1920) 24 C.W.N. 1039 and need not be recapitulated at lengthfor our present purpose. It is sufficient to state that proceedings underSection 145 of the Code of Criminal Procedure were initiated by the DistrictMagistrate of Malda on the ground that a dispute likely to cause a breach ofthe peace existed between the Mathurapur Zemindary Concern and the tenants,relating to the right to grow and collect lac on plum trees standing on landscomprised in the holdings of the tenants. The District Magistrate consideredthe case to be of such emergency that he proceeded to attach the disputed treeswith the lac thereon, pending his decision under Section 145. At a later stage,by order of the District Magistrate, the lac was collected and stored in thegodowns of the first party and a portion thereof was sold by auction. Thetenants obtained Hales from this Court with a view to set aside the proceedingson the ground, amongst others, that the District Magistrate had no jurisdictionto take action under Section 145 or to make the orders he had passed. ThisCourt stayed further proceedings pending the disposal of the Rule. Butnotwithstanding such order, the lac has been collected and sold in part, anaction which has been attempted to be justified, in the letter of theMagistrate, on the allegation that the lac might otherwise considerablydeteriorate in value to the detriment of the rightful owner, whoever he mightturn out to be in the end. On the 2nd July 1920, Mr. Justice Chatterjea and Mr.Justice Cuming set aside the proceedings under Section 145 as initiated withoutjurisdiction and added that the question of disposal of the lac and the saleproceeds of the portion already sold would be dealt with later. The presentRule was then issued, on the 29th July 1920, calling upon the District Magistrateof Malda and the opposite party to show cause why the proceeds of sale of thelac, as also the lac yet unsold and stored in the godowns of the MathurapurZemindary Concern, should not be made over to the tenants, or why such otherorder should not be passed as might seem proper to the Court. As the Ruleinvolves an important question of law touching the jurisdiction of this Court,it has been placed for disposal before a Special Bench constituted with theconcurrence of the Full Court.

2. The first point which requires consideration is, whetherthis Court has inherent power to give directions as to the disposal of propertywhich was attached and Las been dealt with by a subordinate Court in the courseof proceedings instituted without jurisdiction under Section 145 of the Code ofCriminal Procedure. We are of opinion that the question should be answered inthe affirmative. It is now well settled that a High Court is competent, in theexercise of the power of superintendence vested in it under Section 107 of theGovernment of India Act, 1915 (which replaced Section 15 of the Indian HighCourts Act, 1861), to set aside proceedings instituted without jurisdiction bya subordinate Court under Section 145 of the Code of Criminal Procedure; suchpower of superintendence can be exercised notwithstanding Section 435(3), Codeof Criminal Procedure, which lays down that proceedings under Chapter XII(which comprises Sections 145--148) are not proceedings within the meaning ofthat section. This view was affirmed in Hurbullubh Narain Singh v. LuchmeswarProsad Singh I.L.R. (1898) Cal. 188, Laldhari Singh v. Sukdeo Narain SinghI.L.R. (1900) Cal. 892, Jag-mohan Pal v. Ram Kumar Gope I.L.R. (1901) Cal. 416,Kulada Kinkar Roy v. Danesh Mir I.L.R. (1905) Cal. 33 and was subsequentlyrecognised by a Full Bench in the cases of Sukh Lal Sheikh v. Tara chand TaI.L.R. (1905) Cal. 68 and Khosh Mahomed Sirkar v. Nazir Mahomed I.L.R. (1905)Cal. 352. Section 107 of the Government of India Act, which may thus be invokedto set aside proceedings instituted without jurisdiction, is expressed inperfectly general terms, and prima facie, there is no reason why the High Courtshould not, when it sets aside the proceedings, proceed to give suchconsequential directions as may be found necessary in the interests of justicein the circumstances of the particular case. That the Court is competent tomake such consequential or incidental orders, when it exercises its appellateor revisional jurisdiction, is clear from Section 423(1)(d), Section 439(1) andSection 520. In such circumstances, we may legitimately hold that the HighCourt may make consequential or incidental orders in the exercise of its powerof superintendence over subordinate Courts which may be invoked, if occasion shouldarise, to reach and remedy all forms of judicial high-handedness: Lekhraj Ramv. Debi Pershad (1908) 12 C.W.N. 678. This conclusion harmonises with the viewformulated in Palin Behary Das v. King-Emperor (1912) 15 C.L.J. 517, 582, that"Criminal Courts, no less than Civil Courts, exist for the administrationof justice and Courts of both descriptions have inherent power to mould theprocedure, subject to the statutory provisions applicable to the matter inhand, to enable them to discharge their functions as Courts of Justice."The same position was re-affirmed in the following terms in Budhu Lal v. ChattuGope I.L.R. (1916) Cal. 816, 827, 828: "the Code of Criminal Proceduredoes not contain a provision corresponding to Section 151 of the Code of CivilProcedure; but that section does not lay down any new principle; it merelyembodies a legislative recognition of the inherent power of the Court to makesuch orders as may be necessary for the ends of justice. This inherent power isin no sense restricted in application to civil cases; it is equally applicableto criminal matters. The power is not capriciously or arbitrarily exercised; itis exercised ex debito Justitiae to do that real and substantial justice forthe administration of which alone Courts exist, but the Court, in the exerciseof such inherent power, must be careful to see that its decision is based onsound general principles and is not in conflict with them or with theintentions of the Legislature as indicated in statutory provisions," This wasnot a novel proposition nor a new departure, for the inherent power of theCourt had been occasionally recognised in earlier cases. Thus, in Ram ChandraMistry v. Nobin Mirdha I.L.R. (1898) Cal. 630, when the Court was invited toapply, to an order made by a Criminal Court, the elementary principleenunciated by the Judicial Committee in Rodger v. Comptoir D. Escompte de Paris(1871) L.R. 3 P.C. 465, that it is the duty of all Courts to take care that theact of the Court does no injury to any of the suitors, Mr. Justice Hillobserved that in a case which the Court considered to be a fit one in allrespects for its application, the Court would not hesitate to enforce theprinciple referred to. The statement of this principle by Lord Cairns in thecase before the Judicial Committee just mentioned is couched in terms of greatgenerality and may be usefully recalled in this connection. "One of thefirst and highest duties of all Courts is to take care that the act of theCourt does no Injury to any of the suitors and when the expression the act ofthe Court is used, it does not mean merely the act of the Primary Court, or ofany intermediate Court of appear but the act of the Court as a whole, from thelowest Court which entertains jurisdiction over the matter up to the highestCourt which finally disposes of the case. It is the duty of the aggregate ofthose Tribunals, if I may use the expression, to take care that no act of theCourt in the course of the whole of the proceedings does an injury to the suitorsin the Court.

3. Again, in Ahmed Ali v. Keenoo Khan I.L.R. (1908) Cal. 44,when Mr. Justice Brett was pressed with the argument that the High Court couldnot interfere with an order passed by a Magistrate under Section 522 of theCode of Criminal Procedure, because there was no express provision in thatbehalf, the learned Judge referred to Ram Chandra Mistry v. Nobin Mirdha I.L.R.(1898) Cal. 630, as showing that the Court had an "inherentjurisdiction"; though it became unnecessary for him to invoke the aid ofthe inherent power of the Court, because, as pointed out in Manki v. BhagwantiI.L.R. (1904) All. 415, the provision contained in Section 423(1)(d) read withSection 439 was comprehensive enough to include the power required to directcancellation of the order made under Section 522. Again, the decision in In reLakshman Govind Nirgude I.L.R. (1902) Bom. 552, contains a clear recognition ofthe doctrine of inherent power. It has been contended, however, that cases maybe found in the books which tend to show that the theory of inherent power of aCourt to make such orders as may be necessary for the ends of justice, or toprevent abuse of the process of the Court, has been sometimes, if not actuallyrepudiated, at any rate, overlooked and reference has been made to BasudebSurma Gossain v. Naziruddin I.L.R. (1887) Cal. 834, Queen Empress v. FattahChand I.L.R. (1897) Cal. 499, Prayag Mahaton v. Gobind Mahaton I.L.R. (1905)Cal. 602, Arju Mea v. Arman Mea (1908) 7 C.L.J. 369, Surjya Kumar Upadhya v. DinabandhuPal (1911) 15 C.W.N. coliv, Karimuddi Fakir v. Naimuddi Kaviraj (1904) 3 C.L.J.573, Tulshi Ram v. Abrar Ahmad I.L.R. (1915) All. 655, In re AnnapurnabaiI.L.R. (1877) Bom. 630, In re Ratanlal Rangildas I.L.R. (1892) Bom. 748, In reDevidin Durgaprasad I.L.R. (1897) Bom. 844, In re Kuppammall I.L.R. (1906) Mad.375 and Chenga Reddi v. Ramasamy (1914) 16 Cri. L.J. 104, as typicalillustrations. No useful purpose would be served by an analysis of the facts ofeach of these cases and of the opinions expressed thereon, though it may be aquestion whether all of them really ignore or overlook the doctrine of inherentpower. It is sufficient to state that in some instances the matter was notapproached from this point of view, while, in others, even if the doctrine ofinherent power were invoked, the result would not have been different; but noneof the cases expressly repudiates the doctrine of inherent power, thoughseveral proceed on the assumption that a specific provision of the Code ofCriminal Procedure must be pointed out to justify an order made by asubordinate Court or an order which the High Court is invited to pass. Thisnarrow view of the powers and duties of a Court of Justice, whither Civil orCriminal, cannot now be maintained. The truth is that, in respect of CivilCourts, the theory of inherent power, though enunciated by Sir Barnes Peacock,C. J., in 1868 in Hurro Chander Roy v. Suradhani (1868) 9 W.R. 402, was lostsight of for many years and was familiarised only after it had been restatedand re-affirmed in 1906 in Hukum Chand Boid v. Kamalanand Singh I.L.R. (1906)Cal. 927 and recognised thereafter in express terms in Section 151 of the Codeof Civil Procedure, 1908. In the case of Criminal Courts, the theory ofinherent power has had a still more uncertain career, but, as we have seen, itwas welcomed without hesitation in 1898, found some recognition in the Code ofCriminal Procedure of that year and was reaffirmed, in 1912. We feel no doubtwhatever that the doctrine of inherent power, as enunciated in the cases ofPulin Behary Das v. King-Emperor (1912) 15 C.L.J. 517 and restated in Budhu Lalv. Chattn Gope I.L.R. (1916) Cal. 816, is well established on principle andcannot be successfully questioned.

4. The second point which requires examination is, what arethe directions which should be given for the disposal of the lac and the saleproceeds of the portion already sold. It is manifestly impossible to restorethe physical condition of things as they existed when the proceedings underSection 145 were instituted; for the, twigs cannot be re-attached to the treesnor can the lac be replaced on them. The tenants have contended that asrestitutio in integrum is impossible, the lac yet unsold should be sold and theentire sale proceeds divided amongst them ratably in proportion to the numberof trees on the holding of each tenant. This course cannot be adopted for anobvious reason. Such a distribution as that suggested must be made on theassumption that, apart from the possible question of title, all the lac whenattached and removed was in the possession of the tenants. This, however, isstrenuously controverted on behalf of the zemindars and adhyars and the Courtis not in a position to make an assumption in favour of either party, becausethere has been no enquiry, summary or otherwise, in the proceedings which havebeen cancelled as instituted without jurisdiction. It is equally plain that thelac and the money should not remain in the custody of the zemindars and adhyarswho are the other party to the proceedings. In such circumstances, the bestcourse to adopt is to keep the property in the custody of the Court pendingdecision by a civil Court on the question of title to the lac cf. Chenga v.Ramasamy (1914) 16 Cri. L.J. 104. Such a course was commended by LordMacnaghten in Hood Barrs v. Heriot (1896) A.C. 174, 186, where he regrettedthat the Court of Appeal had not thought it proper to hold a fund in mediopending appeal to the House of Lords on the question of title thereto; see alsothe judgment of Lord Watson in Peruvian Guano Company v. Dreyfus Bros. (1892)A.C. 166.

5. The result is that the Rule is made absolute. The lac andthe net sale proceeds of the lac already sold (after deduction of incidentalcharges) will forthwith be placed in the custody of the Subordinate Judge ofMalda, who will take steps, as early as practicable, to have the lac sold. Theentire sale proceeds will constitute one fund which will remain in the custodyof the Court of the Subordinate Judge. The first party will be at liberty toinstitute a suit in the Court of the Subordinate Judge of Malda for declarationof their right to the lac and for incidental reliefs. If such a suit isinstituted on or before the 1st December 1920, the fund will continue to beheld by the Subordinate Judge to await the result of the suit. If on the otherhand, the suit is not instituted by the first party on or before the 1stDecember 1920, the Subordinate Judge will distribute the fund amongst thetenants on the basis of the record prepared by the police authorities as to thenumber of trees on the holding of each tenant from which the lac was taken.

6. The distribution will be made ratably in proportion tothe number of trees on each holding; but this will, not affect the right oftenants inter se to have the question of apportionment amongst themselvesdecided by a Civil Court.

Ernest Edward Fletcher, J.

7. I agree.

Chatterjea, J.

8. I agree.

Thomas William Richardson, J.

9. I agree.

S.C. Ghose, J.

10. I agree.

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Pigot vs. AliMahammad Mandal (27.08.1920 - CALHC)