1973 PLP 81 (PLC)

6. The only authority which has direct relevance "to the proposition under consideration is reported as Ali Imam v. Ghulam Hussain (1970 Law Notes 285), while holding the order of a v1agistrate under Standing Order No. 16 was not revisable by, the High Court, Muhammad Haleem, J. observed: "Undoubtedly, the Magistrate was not exercising any powers in relation to any proceeding under the Code but pursuant to power conferred section 16k2) of the Ordinance his order, there fore, was not one under the Code but under that Ordinance. Merely because section 6, Criminal Procedure Code, designates a Magistrate as a Criminal Court, it cannot be said that for the purpose, of exercising the powers conferred on him as a Magis trate under that Ordinance he can be deemed to be an inferior Criminal Court. He entertains the complaint as a persona designata and not as a criminal Court." With utmost respect to his Lordship it may be pointed out that nothing turns on the question whether the order of a Magistrate has been passed under the Code of Criminal Procedure or under a special law, or if the language of the special law indicates that the intention of the Legislature was to extend the jurisdiction of A an existing Criminal Court and not to set it up as a special tribu nal, an order made under the special law will be revisable by the High Court despite the fact that it has not been made under the Code of Criminal Procedure.

7. In support of his view Muhammad Haleem J., placed reliance upon Alam Bibi v. District Magistrate (P L D 1961 Kar. 29) and Sakhi Muhammad v. Wajid Ail (P L D 1964 Lab. 426). The first mentioned case was with regard to an order of a District Magistrate made under section 13, Sind Prevention of Prostitution Act. It was held that while making the order the District Magistrate acted in an Administrative or executive capacity and not as a criminal Court. This Is not the case here, for, under Standing Order No. 16, a Magistrate of the first class acts in a judicial capacity. In the second mentioned case the power to try certain offences was conferred upon the Industrial Court set up under the Industrial Disputes Ordinance, which by subsection (4) of section. 12 provided that any decision or award of the said Court would be final and not open to question in any manner by or be fore any judicial or other authority including the High Court and the Supreme Court. It will thus appear that the Ordinance itself and taken away the revisional jurisdiction of the High Court in respect of the orders made by the Industrial Court. As such this authority cannot be cited in support of the much larger proposi tion that an order made by a criminal Court in exercise of a juris diction vested upon it by a law other than the Code of Criminal procedure remains outside the revisional jurisdiction of the High Court.

8. In some of the authorities, particularly of the Allahabad High Court, it has been suggested that the order of a Criminal Court under a special law will fall within the revisional jurisdic tion of the High Court only if it relates to the investigation or trial of offences. This is too narrow a view for there are many proceedings provided by the Code of Criminal Procedure itself, which do not relate to either the investigation or trial of offences. In this context it will be useful to reproduce the observations of the Bombay High Court in Jamshi Govindji Sanghadia v. Emperor (A I R 1946 Bom 533), which was a case under rule 81 (2), Defence of India Rules. While disposing of one of the objections involving the revisional jurisdiction of the High Court Sen, J. observed "It has been contended by the learned Assistant Government Pleader that in a case for revision under section 439 the order com plained against must come within the scope of the words 'any proceeding before the Criminal Court in section 435 of the Code that the order in question cannot be described either as a' pro ceedings or as having been passed by a Criminal Court and that, the order must be deemed not to be a judicial but an executive order and as such not revisable by this Court. He has argued that a 'proceeding' within the meaning of section 435 must have some reference to the commission of an offence and that such was not the case here. We are unable to accept this argument. It seems to us that there are some provisions in the Criminal Pro cedure Code itself, which are not concerned or not necessarily concerned, with the commission or the prevention of an offence, for instance, sections 488, 144 and 133, Cr. P. C. It seems to us obvious that the word 'proceedings' cannot be given such a restrictive significance as contended for by the learned Assistant Government Pleader; a proceeding cannot be said to have any reference, by itself, to the commission or trial of an offence."

9. Most of the cases cited in the referring note which favour the exclusion of the revisional jurisdiction of the high Court relate to statutes where the Magistrates were called upon to perform duties entirely of executive or administrative nature as persona designata and as such these are not relevant to the proposition before us. Thus in the Nizam v. State (A I R 1955 Hyd. 241). While holding that the order of a District Magistrate in directing the Commissioner of Police to hold an inquiry was not revisable by the High Court a Division Bench observed:- "A Magistrate, though vested with powers under the Criminal Procedure Code, may also be vested with certain powers under special Acts as persona designata and in discharge of such duties, he is deemed to exercise executive functions and is not amenable' to the revisional jurisdiction of the High Court under section 435, C. P. C- on the ground that the proceedings were not those of an inferior Criminal Court. For the same reason the Bombay High Court declined to interfere in the case of Osman Naji Muhammad (A I R 1930 Bom. 468) on the ground that the Chief Presiding Magistrate when exercising powers under section 45, City of Bombay Police Act, 1902, acted as persona designata and not as a criminal Court. The other cases which fall in this category are Secretary of State v. Govendram (A I R 1930 Sind 162). Manghamal Gianchand v. Emperor (A I R 1939 Sind 340), Ujainshl v. Emperor (A I R 1946 Bom. 533), Lospken Munici pality v. Shahabuddin (A I R 1952 Madh Bhr. 48) and Wall Muhammad v. Monik Chand Rasil (A I R 1957 Cal. 221). In all these authorities it was held that as the Magistrate had passed the Impugned order in a ministerial or executive capacity as persona designata he could not be regarded as an inferior criminal Court subject to the revisional jurisdiction of the High Court.

10. It is also not unusual for the Magistrate to be appointed as a Court designata and he conferred with a jurisdiction which is essentially of Civil nature. Moo of these cases relate to taxation matters under laws relative to local government wherein the Magistrate (often, the District Magistrates) were constituted as the appellate or revisional authority. For obvious reasons when exercising such a jurisdiction a Magistrate cannot be regarded as a criminal Court at all and the revisional jurisdiction of the High Court must be regarded to have been excluded by necessary intendment. Quite a few of the cases cited by the learned Single Judge fall in this category. These are Municipal Board, Amritsar v. Ram Sahai (A I R 1933 All. 738), Karachi Municipality v Jafarji Jayabji (A I R 1927 Sind 23). Madho Das v. Rex (A I R 1949 All. 738) D Monte v. Bandra Borough Municipality (A I R 1950 Bom. 397), Shevapuri Municipality v. Parshadilal (A I R 1952 Madh. Bha. 29) and also possibly Jagesh Pan ley v. Bhuneshmar Pandey (A I R 1953 Pat. 103) in which the relevant facts were mot given. The Bombay High Court in D'Monte's case went of to observe that even if a revision to the High Court was provided by the relevant statute it would lie on the civil side and not on the criminal side.

11. The authorities reported as Banwan Gope v. Emperor (A I R-1943 Pat. 18) and State v. Banwais (A I R 1957 Punj. 88) also mentioned by the learned Single Judge in his order .of reference relate to statutes which had expressly barred the revisional jurisdiction of the High Court. As such these arc not relevant to the point in issue before us.

12. The only authority from the Indian jurisdiction which seems to have some relevant:: to the proposition under consider ation is reported as B. Krishna v. D. Chenchy teddy (AIR 1919 Andh. Pra. 129). It was a case under section 87, Madras Hindu Religious and Charitable Eadorsements Act, 1951, which empowered a Magistrate to direct the eviction of a person who was in an unauthorised possession of a religious institution or its properties upon an application of a trustee or office holders of the religious institution. The question for consideration was if an order of eviction made by a Magistrate was revisable by the High Court. After a review of the relevant case-law in India the learned Judges, recorded their answer in the affirmative and held that it was a case of enlargement of jurisdiction and not of the setting-up of a person designata so as to take away the revisional jurisdiction of the High Court.

13. For the reasons stated above T -am of the opinion that Stag Order No. 16 only , extends the jurisdiction of the Magistrates of the First Class and any order made under the (said Standing Order has to be regarded as one passed by an inferior criminal Court and subject to the revisional jurisdiction of the High Court. I would therefore, answer the reference in the affirmative.

14. During the coarse of hearing my Lord the Chief Justice informed the parties that instead of sending the record back to the learned Single Judge after answering the reference, this Bench would dispose of the revision petition finally. According the parties addressed their arguments on merits also. To appreciate the only point urged in support of this revision petition it may be stated that the complaint in this case was made by Mr. A. H. Malik. Under Clause (2) of Standing Order No. 16, only an employer can lodge a complaint with a Magistrate of the First Class for the eviction of his ex-employee. The word "employer" has been defined in Clause (c) of section 2 of the Ordinance, and for the purpose of the present case only sub-clause (iii) is relevant. According to this sub-clause the word "employer" includes : - "in any industrial or commercial establishment, any person responsible to the owner for the supervision or control of such establishment" The Flashman's Hotel was formerly owned by an Indian Company which was declared an enemy firm during the 1965 War. By, a notification, bearing No. III-I-75/65 (2) of 17th September 1965, the Provincial Government declared the said hotel to be an organization to which Rule 181, Defence of Pakistan Rules, applied and handed over its management to the P. I. A. Corporation which in turn appointed Mr. A. H. Malik as the Manager for the said hotel.

15. The status of a person who has been entrusted with the Management of an enemy firm under Rule 181, Defence of Pakistan Rules, has been described in clause (a) of its sub-rule (2) which in the following terms :- "Such person shall be deemed to be acting as an agent of the firm and subject only to such restrictions as the Central Government may impose, shall have in relation to the man agement of the affairs of the firm all such powers and authority as the firm itself would have if it, were not an enemy firm . . . . . . . ." It was submitted on behalf of the petitioner that the only person who could be said to be responsible for the supervision and control of the hotel to the true owner, that Is, the Indian Company, was the P. I. A. Corporation and not Mr. A. H. Malik whose position at best was that of an agent's agent. Thus the there was no proper complaint before the Magistrate on the basis of which the order of eviction could be made against the petitioner.

16. This argument Is based on a misunderstanding about the true Import of the provisions of Rule 181, a perusal of which will show that whenever the Central Government or the Provincial Governments (which enjoy delegated powers In this behalf) take over the control and management of an enemy firm, the enemy firm loses all rights to manage or control the carrying on of its trade or business. The person appointed to administer the enemy firm represents it in all matters. Even though he is deemed to be an agent of the enemy firm, yet it is not a case of an ordinary agency for he has all the powers and authority of the firm and is entitled to the management of its affairs to the exclusion of any other person acting or purporting to act on its behalf. Thus, if any question arises about the responsibility to the true owner, it has to be determined with reference to the statutory agent and not with regard to the enemy firm which lies under a state of `suspended animation." It is, therefore, futile on the part of the learned counsel for the petitioner to contend that as Mr. A. H. Malik was not directly responsible to the true owner of the hotel, he was not competent to lodge the complaint. It may also be mentioned that the qualification needed for a person to fall under sub-clause (iii) of clause (c) of section 2 of the Ordinance is that he should be responsible to the owner and not that he should have been 'appointed' by the owner for the supervision and control of his establishment.

17. For the aforesaid reasons this revision petition falls on merits and is hereby dismissed. ANWARUL-HAQ, C. J.-I agree. Petition not allowed.