P L D 1960 Dacca 512 (PLP)

On 16‑3‑59 and 17‑3‑59, the Magistrate was informed that no settlement could be arrived at, as there was another case pending in Chandpur S. D. O.'s Court as well as in the office of the Controller of Exports and Imports. Again, the Magistrate concerned pur ported to record an opinion in the order‑sheet that it is in the interest of both parties that they should compromise matters, and advised one other person, named M. A. Salam of Chandpur, who was present in Court in some other case, to intervene in the matter to bring about some sort of settlement. The case was thereafter again adjourned till the 27th of March 1959. On this day, however, since no settlement was arrived at, he purported to pass an order which is headed in his own writing in the order‑sheet "Final Order."

9. Reading the said order it appears that the Magistrate conceived it to be his function to decide a dispute arising out of the sale of the import licence between the parties before him and then ultimately to adjudicate that the imported goods covered by the said licence be released by the Clearing Agent in favour of the first party who paid for the goods.

10. It appears that the case of Messrs M. A. Razzak & Sons in respect of the said import licence was that it obtained the said import licence for the import of spices on the 30th of April 1958. Thereafter, on the 5th of August 1958, it entered into a contract with Messrs S. S. Habib of Korbaniganj, Chittagong, for the forward sale of the goods imported under the said cash, licence on a net profit of 20% on C. and F. value of the goods and received a sum of Rs. 1,288 as advance money. This contract was later substituted at the instance of Messrs S. S. Habib by a fresh contract on the 1st of September 1958, between Messrs M. A. Razzak & Messrs Ghani and Tayeb and then a letter of credit was opened through the Habib Bank, Ltd., on the 18th of August 1958, by Messrs M. A. Razzak and the documents of the shipment of the cargo were cleared by the petitioner from Messrs Habib Bank, Ltd., Chittagong, after making necessary payments. At this stage, one Messrs Arco Traders of Chittagong were, at their request, on the 11th of October 1958, appointed Clearing Agents to clear the said goods and the licence and ship ping documents were sent to them by the firm of Messrs M. A. Razzak & Sons by registered post. Then, on the 25th of November 1958, Messrs Ghani and Tayeb having failed to pay the balance of the stipulated amount of the forward sale were served with a notice of cancellation of the forward sale and offered a refund of the sum of Rs. 1,288 advanced by Messrs S. S. Habib in respect of the said contract. This registered letter was refused by Messrs Ghani and Tayeb but the said firm sent a telegram asking for the refund of the full amount paid to Messrs M. A. Razzak.

11. After the promulgation of the Martial Law, however, on the 5th November 1958, a Press Note was issued by the Govern ment of East Pakistan, being Press No. 1669 P. R., directing sellers and purchasers of licences to declare such sales and pur chases to the Controller of Imports and Exports, Chittagong, on or before the 5th of December 1958, in order to enable the Controller to issue licences to the genuine importers. Messrs Ghani and Tayeb then submitted a petition to the Controller alleging that they had purchased the licence in question ; but the Controller of Imports and Exports took no further action in the matter.

12. Further complications arose later when it transpired that the Clearing Agents Messrs Arco Traders were not licenced clearing agents and, as such, they had engaged Messrs Alam Chowdhury & Co. of Chittagong to clear the goods on their behalf and had handed over the shipping documents to them. This Messrs Alam Chowdhury & Company, however, it was ascertained, was thereafter attempting to take delivery of the goods on behalf of Messrs Ghani and Tayeb. On coming to know these facts, Messrs M. A. Razzak & Sons instituted a case under section 420 of the Pakistan Penal Code against the said Messrs Alam Chowdhury & Company before the Sub‑divisional Officer of Chandpur and a search‑warrant was issued, some of the shipping documents were recovered from Messrs Alam Chowdhury & Company and produced in the Chandpur Court. Thereafter, on the 31st of December 1958, the Chandpur Court had also at the request of Messrs M. A. Razzak & Sons made over the shipping documents to the latter to obtain a release of the cargo from the Port and for keeping the goods in the Court's custody after such release.

13. After the final order made by the Magistrate, Messrs M. A. Razzak & Sons moved the learned Sessions Judge of Chittagong either to make a reference to this Court under section 438 of the Code of Criminal Procedure or, in the alter native, to revise the order of the said Mr. Moinuddin in exercise of the powers conferred upon him under section 3 of the Martial Law Regulation No. 61 issued by the Chief Martial Law Administrator.

14. The learned Sessions Judge took, the view that both the Magistrates concerned had acted wholly without jurisdiction, for the Martial Law Regulations did not vest the Magistrates of the 1st Class in this Zone with powers to decide any and every kind of dispute between the parties by starting Miscellaneous cases. The further view of the learned Sessions Judge was that although the Magistrates concerned purported to arrogate to themselves the powers of a Summary Military Court, they could not do so, for, at the relevant times, neither of them were constituted such Summary Military Courts. So far as the claim of the Magistrates concerned to have acted under the Martial Law Regulations No. 61 is concerned, the learned Sessions Judge was evidently of the view that since the Magistrates had not purported to try any violation of any Martial Law Regulation, they were not Magistrates exercising powers under the said Martial Law Regulation but ordinary Magistrates of the 1st Class exercising their ordinary powers under the Criminal Procedure Code. The learned Sessions Judge, however, rejected the alternative prayer for revision under section 3, for he considered that the orders passed by the Magistrates concerned were not "sentences" which alone could be revised under Martial Law Regulation No. 61.

15. Before me, the learned Advocate appearing to oppose this reference has not made any attempt whatsoever to justify the orders of the Magistrates concerned ; but, on the other hand, he has attempted to argue that since the Magistrates concerned purpor ted to act under the Martial Law Regulations, they were not inferior criminal Courts within the meaning of section 435 of the Code of Criminal Procedure and, as such, their orders were not revisable by this Court under section 439 of the Code of Criminal Procedure. In support of this contention, he sought to rely upon the decision of this Court in the case of Hari Meah v. The State (P L D 1958 Dacca 333), where it has been held that a Special Magistrate appoint ed under the Food (Special Courts) Act (East Pakistan Act X of 1956) is not a Criminal Court inferior to the High Court within the meaning of the Code of Criminal Procedure and, as such, the orders made by such a Court are not revisable under section 439 of the Code of Criminal Procedure.

16. In these circumstances, it is necessary to examine the position of the Magistrates of the 1st Class under the Martial Law Regulations. It appears that on the 28th of November 1958, the Martial Law Administrator of Zone "C", by his order No. 31, empowered certain Magistrates of the 1st Class in various civil districts of East Pakistan to hold Summary Military Courts. One of these was Mr. Muhammad Ali Karim, the Magistrate who purported to make the order on the 31st of January 1959, as such Summary Military Court. But he overlooked the fact that by a subsequent order, being Order No. 43 by the same authority, on the 17th of January 1959, published as Notification No. 104L of the said date. Order No. 31, dated the 28th of ‑November 1958, was cancelled and, therefore, on the relevant date; namely, the 31st of January 1959, the said Mr. M. A. Karim was no longer a Summary Military Court but only an ordinary Magistrate of the 1st Class. Under the provisions, however, of Regulation No. 61 issued by the Chief Martial Law Administrator on the 24th of December 1958, under Notification No. 1266F/1958, all Magis trates of the 1st Class were empowered to try all cases against the Martial Law Regulations. Under the said Regulations, no appeal lay from any sentence imposed in a case tried in exercise of such powers. But, by section 3 of the said Regulation, from sentences other than that of death imposed by such Magistrates in cases tried in pursuance of those provisions, a revision was provided. (a) to the Court of Session in respect of sentences other than imprisonment, transportation or death ; (b) to the Court of Session in respect of sentences of imprisonment for a term not exceeding four years, whether or not combined with any other punishment, and (c) to the High Court in respect of all other sentences ; and in respect of such revisional applications, the Sessions Courts and the High Court were conferred the powers given to the High Court under subsection (1) of section 439 of the Code of Criminal Procedure. There was, however, to be no further revision thereafter.

17. Under this Regulation; Military Courts were also set up and certain cases were to be transferred to such Military Courts for trial. These were designated as "Special Military Courts" by Regulation No. 63 reconstituting the above Regulation No. 61 and, by Order No. 47 of the Martial Law Administrator, Zone `C', the trial of certain offences was assigned to such Special Military Courts and it was provided by the same Order that all other offences under Martial Law Regulations/Orders except those specifically assigned to Special Military Courts shall be tried by criminal Courts.

18. The arguments of the learned Advocate appearing to oppose this reference cannot, therefore, in view of these provisions, be considered to be sound. Under section 3 of the Martial Law Regulations the powers of such Magistrates, who are ordinary Magistrates of the 1st Class, were merely enlarged by the additional powers given under the Martial Law Regulations and the sentences passed by them were expressly made revisable, although the right of appeal from sentences imposed by such Magistrates was taken away.

19. It has, furthermore, to be remembered that in this case the Magistrates of the 1st Class really exercised dual functions, namely, they functioned as ordinary Magistrates of the 1st Class exercising their powers under the Code of Criminal Procedure, as also exercised the powers of punishing contraventions in certain cases of the Martial Law Regulations. The special power given to them by Regulation No. 61 was, therefore, limited to trying cases of contraventions of Martial Law Regulations and not any and every kind of dispute.

20. It could not, therefore, be said that the ordinary powers of revision of this Court had been altogether taken away in respect of any order made by a Magistrate of a first Class, for, if the argument of the learned Advocate is accepted, that would lead to the inevitable result that orders of none of the Magistrates of the first Class would be revisable by this Court, because, under Regulation No. 61; all Magistrates of the 1st Class were given powers to try violations of Martial Law Regulations. That could not have been and was not, in my opinion, the intention of the Martial Law Regulations. Martial Law Regulation No. 61 merely vested the Magistrates of the 1st Class with additional powers to try violation of Martial Law Regulations and, where a Magistrate lawfully and rightly exercised such jurisdiction to try a Martial Law case, the power of appeal was taken away and the power of revision was, thereafter, as provided by section 3 of the said Regulation No. 61.

21. In the present case it is, no doubt, true that the petition, though in the form of a letter, which was filed by M. Siddique, was addressed to Summary Military Court and did disclose some kind 3f offers:;; under Martial Law Regulation No. 41 which prohibited the sale and purchase of import licences and permits as and from its date of publication, namely, the 3rd of November 1958, as also made non‑compliance with the said Regulation punishable with a maximum punishment of fourteen years' rigorous imprisonment and fine. The Magistrate concerned could have, on the basis of the said letter, if he was satisfied that a prima facie case had been made out after examining the com plainant, summoned the accused to answer a charge under this Regulation and try him. But he did not do anything of this kind. On the other hand, he purported to issue a prohibitory injunction restraining a third person who was not a party to the proceeding at all, namely, the Clearing Agents, from delivering the goods to the person complained against, namely, Messrs M. A. Razzak & Sons.

22. In his explanation to the Sessions Judge; tale Magistrate, Mr. M. A. Karim, has stated in no uncertain terms that he purported to issue the said order under section 144 of the Code of Criminal Procedure as he apprehended that there would be a breach of the peace. In the so‑called petition of complaint, however, there was no suggestion even of any likelihood of any breach of the peace, nor is it possible to ascertain from anything on the record as to from where the learned Magistrate acquired this apprehension of a breach of the peace.

23. So far as the second Magistrate, Mr. S. G. Moinuddin, is concerned, I must frankly confess that I am unable to appreciate under what provision of what law he purported to act. It rather seems to me that he all of a sudden converted himself into a Civil Court, first advised the parties to settle their differences, then appointed an arbitrator in the case to bring about a settlement of the dispute and ultimately purported to decide a dispute with regard to the imported goods, namely, as to whether the com plainant M. Siddique had, in fact, purchased the said imported goods. This was really an adjudication as to the title to‑ the said goods. The question of the non‑declaration by Messrs M. A. Razzak of the alleged sale of the import licence was purely incidental and rather in the nature of a circumstance tending to negative the claim of Messrs M. A. Razzak that the goods really belonged to him and he had a right to take delivery thereof from the customs authorities.

24. It is clear, therefore, that neither of the Magistrates concerned purported to try any violation of any Martial Law Regulation, as contemplated by Regulation No.

61. It is not open, therefore, to the learned Advocate now to take shelter behind the said Regulation.

25. At one stage, the learned Advocate appearing in support of this reference also sought to argue that, even if the Magistrates concerned had validly exercised a jurisdiction under Martial Law Regulation No. 61 and purported to try a violation of a Martial Law Regulation, the order passed by him would be revisable under section 3 of the Martial Law Regulation, for, it would, in so far it affected his client, be a sentence. He endeavoured to contend that a sentence in the case of a Criminal Court was really what a judg ment was for a Civil Court and any pronouncement of a Criminal Court finally deciding any point must be a sentence in that sense of the term.

26. The word "sentence" has, of course, not been defined in the Code itself and it appears that even their Lordships of the Judicial Committee did not seek to lay down any definition of the word, when it came up before them for consideration in the case of Chung Chuck v. Rez (AIR 1930PC291), apart from saying that there is a difference between a verdict and a sentence and that the word "sentence" is a well‑known word in the English Common Law. The question there was as to whether a leave to appeal given by a British Columbia Court had been validly given when under the Privy Council Act of 1844 powers had been given to provide for appeals to Her Majesty‑in‑Council from judgments, sentences, decrees or orders of any Court of justice within any British Colony or possession abroad. It was sought to be argued that their Lordships' power was wide enough to cover any decision ; but their Lordships did not accept this condition. It would thus seem that in their Lordships' view sentences, judgments, decrees or orders were not synonymous with decisions.

27. Such distinction also appears to have been made in Courts in this Sub‑continent. Thus, in the case of Emperor v. Krishna Pandaram (16 Cr. L J 134), an order of the District Magistrate under section 10 of the Reformatory Schools Act (Act VIII of 1897) was held not to be a sentence within the meaning of the Code of Criminal Procedure, as it was not a punishment enumerated in the Penal Code.

28. It would seem, therefore, that although a sentence is a judgment of a Court of Criminal Jurisdiction it is a judgment of a particular kind. It is a judgment declaring the consequence of the criminal trial and pronouncing a penalty. Unless the penalty is there, it cannot be called a sentence. A prohibitory order under section 144 of the Code of Criminal Procedure, though admittedly passed by a criminal Court, is not a sentence in this sense and I am, therefore, in agreement with the learned Sessions Judge that it would not be justifiable to give such an extended meaning to the word `sentence', as was sought to be given to it by the learned Advocate appearing in support of this reference.

29. Be that as it may, it seems to me that in the present case since the Magistrates concerned were not Summary Military Courts at the relevant times and were not trying any violation of any Martial Law Regulation they are not entitled to the protection 1 of Martial Law Regulation No. 61 and they must be taken to have been acting as ordinary criminal Courts of the land which are certainly inferior to this Court and their orders are there fore, revisable by this Court.

30. Having come to this view, it is now to be decided as to whether the orders purported to be made in the present case by the said two Magistrates were valid orders or else should they be quashed.

31. The learned Advocate appearing in support of this reference has, of course, pointed out, firstly, that either the first order made by Mr. Karim was an order under section 144 of the Code of Criminal Procedure or was an order wholly without any jurisdiction which no Magistrate or Criminal Court could make. No Criminal Court has the power to issue an injunction like a Civil Court. A Criminal Court has certain limited powers in that behalf which are defined in the Criminal Procedure Code, such as the power under section 144 of the Code of Criminal Procedure to make a certain prohibitory orders. The learned Advocate, of course, further contended that no such order could be made with regard to any movable property like the property involved in the present case, namely, spices. The only decision that I have been able to discover to support this latter point of view is in the case of Ananda Chandra Bhattacharyya v. Carr Stephen (I L R 19 Gal. 127), where, whilst revising an order under section 144 made by a Magistrate forbidding a person, who claimed an interest in certain properties, from collecting any rent from the raiyats on the properties, it was held that the order was made without jurisdiction, as "Chapter XI of the Code of Criminal Procedure refers to the interference or dealing of some kind with the land itself or with something erected or standing upon it, and is directed to the prevention or direction by prompt order of some definite act on the part of an individual so that injury or nuisance may not be caused".

32. With great respect, I am unable to agree with this view. Section 144 of the Code of Criminal Procedure in express terms provides that such an order may direct any person to abstain from a certain act or "to take certain order with property in his posses sion or under his management", if such Magistrate considers that such a direction is likely to prevent, or tends to prevent obstruc tion, annoyance or injury, or risk of obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or disturbance of the public tranquillity, or a riot, or an affray. Section 145 of the said Code, on the other hand, clearly indicates that if a dispute likely to cause a breach of the peace exists concerning any land or water or the boundaries thereof, then he shall make an order in writing, etc. If the framers of the Code of Criminal Procedure intended to use the word "property" in section 144 in the limited sense of meaning immov able property only, then I do not appreciate why they should in the very next section have taken the trouble to specify "land and water". In my view, it would be an unwarranted restriction on the powers of the Magistrates under section 144 to hold that it is confined to making orders in respect of immovable property only, for, it can well be imagined that danger to human life, annoyance or injury or even a riot may be equally likely to be caused by the possession or control of movable property. Suppose, for example, a person with a dangerous mechanical contrivance likely to cause danger to human life goes about the streets of a city, surely it could not be suggested that the Magistrate will not be able under section 144 to restrain him from going about in the streets with that property. Similarly, it is quite conceivable that a riot may be caused over a possession of a property, say, for instance, a Jagannath car, which may be taken out in the public high way.

33. I am, however, convinced that what the Magistrates in the present case have done has been really to usurp the function of a Civil Court and the order that was passed was neither necessary nor required for any one of the purposes mentioned under section 144 of the Code of Criminal Procedure. As I have already stated, there is nothing on the record to suggest that there was any likelihood of any kind or breach of the peace and it would be, I think, too much of a speculation to suggest that chillis would be likely to cause danger to human life or any injury thereto. That a Criminal Court has no power to really adjudicate on civil disputes is now abundantly clear and if, necessary, I may refer to the decision in the case of Laong Mow and others v. Tchun Chun (12 C W N 1044), where an order directing the keeping of certain movable properties in dispute in the custody of the Court was held to be without jurisdiction not because the property was movable but because, according to the Division Bench of the Calcutta High Court, the Court's custody of such articles was wholly without jurisdiction. That is to say, the kind of order that could be' passed under section 144 of the Code of Criminal Procedure did, not include an order for keeping an article in the custody of the Court.

34. In my view, the kind of order that has been made in this case directing the delivery of movable properties to another is also not contemplated by section 144 of the Code of Criminal Procedure, for, really, here the object was to prevent pecuniary loss to a party or to give him really what is a civil relief. It is from this point of view that in the case of (Maya C) Vythilinga Mudaliar v. G. Ramanuja Mudaliar (A I R 1929 Mad. 845), it was held that the Criminal Courts should not lend their aid to a person who merely seeks to enforce his possession over certain property. In this case, too, on the statement of the complainant himself he was never in possession of the imported goods. The goods were in the possession of the Clearing Agents and he was really seeking by this order to enforce his possession and get delivery of the goods of which he had no possession.

35. For these reasons, I have no doubt in my mind that the orders purported to be made by the two Magistrates in the present case were wholly without jurisdiction and not orders which any Criminal Court could possibly make and, therefore, it is clear that they must be quashed.

36. The reference is accordingly accepted and the orders passed by Mr. M. A. Karim and Mr. S. G. Moinuddin on the 31st of January 1959, and the 27/28th March 1959, are hereby quashed. K. B A Reference accepted.