ORDER
1. Heard Counsel.
This order shall govern disposal of M. Ps., Nos. 17J2/90, 1705/90, 1711/90,1714/90, 1715/90, 1717/90, 1718/90 and 1719/90.
2. The same question is agitated in all petitions and indeed a common interim order was passed separately in all the petitions on 10-8-1990 in regard to 10 separate cases disposed of by the Court below. By this common order, we are finally disposing of all the ten petitions.
3. On the last date, by order aforesaid, we made a two-fold direction in this matter. We took the view that 10 separate orders passed on 20-7-1990 by Smt. Meena Bhatt, Second Additional Chief Judicial Magistrate, Gwalior, in regard to custody of 304 kgs. of silver entrusted under different orders to different persons were violative of the law laid down in the decision rendered by this Court in M.P. No. 724/90, decided on 23-6-1990, Union of India v. In-Charge P. S. Janak Ganj.
4. We accordingly made a direction for recovery of the silver and for that being deposited in the Treasury at Gwalior. That direction was made against Station House-in-Charge, Police Station G.R.P. (Broad Gauge), Gwalipr, impleaded in all 10 petitions as respondent No. 1. Today, Shri Gopal Sharma, Station House Officer, (Broad Gauge), Gwalior appeared in person before us in this matter and filed a written report that despite best efforts pursued at Gwalior as also at Mathura. recovery could not be made. He further informed us that from the Court of Shri A. K. Verma, JMFC, Gwalior, notices have been issued to concerned persons, including supurdgidars, for depositing the silver in that Court fixing for that purpose 3-9-1990, for default, order would be passed for forfeiture of the bond executed. Notices have been served on Gopaldas, Babulal, Shankerial and Nemichand of Gwalior but one Kamal Kishore of Gwalior is still untraceable. Four other persons, who are from Mathura have also remained unserved. Indeed, the person from whom silver was actually seized, Nirbhay Kumar (herein respondent No. 2 in all petitions), is also untraceable.
5. Second direction we had made calling for a report from Smt. Meena Bhatt in regard to the order passed by her and complaint made in regard to conduct of the proceedings in her Court hi respect to the orders passed by her in 10 cases. We have her report before us today and that we have carefully perused. Although that is a longish report, the sum and substance of the stand of the learned Magistrate is that she found this Court’s order dated 23-6-1990 passed in M. P. No. 724/90 distinguishable on facts and she examined herself the law by looking into the provisions of Income Tax Act. She took the view that provisions not of the Act but of Criminal Procedure Code were to be followed and she accordingly dealt with and disposed of the matters. Indeed, it is on that basis that she rejected the prayer of the instant petitioner (Income Tax Department) for custody of silver and for staying operation of her order passed in favour of other applicants claiming custody of silver.
6. We carefully scanned and sifted her explanation, but found no whisper there of any effort made to explain why it was at all felt necessary to pass hastily the order for interim custody in favour of the successful applicants even assuming that Section 451/457, Criminal Procedure Code applied. Those provisions contemplate an enquiry to ascertain the question of “proper custody”. Admittedly, no evidence was recorded and there is total silence in regard to that default in the explanation. The two expressions – “proper custody” of Section 451 and “person entitled to possession” of Section 457, Criminal Procedure Code – laid heavy burden on the learned Magistrate to do so. No doubt that word, “entitle” of Section 457 refers to legal entitlement in regard to the right of possession. Therefore, in some cases the owner may not have right to possession of any particular article. Relevance, therefore, of special law enacted in Section 132A(1)(c), Income Tax Act was unduly ignored arbitrarily dehors this Court’s decision in that regard. Although in the order passed on 20-7-1990, there is no explanation to the materials she has referred in paras 2 and 3 of her report, those we have considered. Such as, affidavits and books of account of persons claiming ownership of silver seized from Nirbhay Kumar. It does not appear that any opportunity was given to the Income Tax Department to challenge the materials furnished by the applicants/supurdgidars by fixing a date for evidence on the ground that the ownership was not challenged. The fact that Income Tax Department and also the police opposed custody of the silver to be given to the successful applicants, evidently lost its importance because the special law was ignored. Nirbhay, Kumar’s status as alleged carrier was accepted without ado though that was a question to be properly enquired into in the facts and circumstances of the case.
7. Although provisions of Section 451/457, Criminal Procedure Code are relied on while passing the impugned orders and in the explanation also, that position is stressed, compliance therewith has been too purfunctory and that is too apparent to be missed. Normally and ordinarily, under Section 451, Criminal Procedure Code, order is passed with due expedition, when the “property is subject to speedy and natural decay”. There was no compulsion on the Court to pass the order immediately of handing over the silver seized to the Supurdgidars because it would have been just and proper in the facts and circumstances of the case to entrust custody thereof to the Treasury Officer ‘ at Gwalior to ensure its safety and security. Whether or not the provisions of Income Tax Act applied, that was the proper course to be followed, as that only could be deemed “expedient” to be followed in the facts and circumstances of the case.
8. What is indeed immensely amusing is the effort made by the learned Magistrate to distinguish this Court’s decision dated 23-6-1990. For a judicial officer of her standing with 12 years’ service, it is naive to submit that ratio of a High Court’s decision can be ignored by the subordinate Court because of facts of two cases not being on all fours. On referring to that decision we find that law had been settled in very clear terms in that order, which admits no doubt or exception. We do not feel hesitant to observe that learned Magistrate’s claim to be deficient in knowledge of English is unacceptable to us. She should have no difficulty in following the plain language used in the order. More so, because it was not a cryptic or laconical order but was a longish and reasoned order of 4 or 5 pages explaining the law, by dealing with the contentions urged. Shri R. D. Jain had appeared in that case and urged that the “warrant of authorisation” issued by the Income Tax Department in that case was illegal and void and did not bind the Magistrate. That contention was refuted. The same question had to be answered by the learned Magistrate, in the manner in which this Court had answered as the petitioner (Income Tax Department) had claimed custody of the silver in the ten cases before us on the basis of similar “warrants of authorisation”. She answered, strangely, the same question in a contrary manner holding that provisions of Income Tax Act have no relevance. Under the Income Tax Act, those “warrants” to claim custody were issued and this Court has taken the view that special law being invoked, the matter had to be dealt with in accordance with that law. It has been held that it was not within the competence of the learned Magistrate or even of the High Court to deal or decide the question of validity of such “warrants of authorisation”.
8A. Learned Magistrate, in these cases, unfortunately, undertook examination of validity of such “Warrants” by referring to the provision of Income Tax Act, despite that exercise being expressly proihibited by this Court. It was not open to her to question either legislative wisdom or even this Court’s judicial mandate in taking the view (expressed tersely in the order, dilated upon in the report though) that for satisfying itself as to evasion of income tax, Income Tax Authorities need not have custody of the articles seized. Merely because in M. P. No. 724/90, article in question was cash money and in these cases silver ornaments, she was not justified in ignoring the law laid down by this Court. Both articles were “assets” within the meaning of Section 132A(1)(c) of the Income Tax Apt.
9. For all the aforesaid reasons, we find no merit in the explanation, which Smt. Bhatt has submitted and we do not think that it is necessary to give her a personal hearing for deciding whether we should make a recommendation for withdrawal of her criminal powers.
10. In so far as orders impugned in these cases are concerned, those have been held illegal on 10-8-1990 itself and are today finally quashed. For recovery of silver seized from Nirbhay Kumar, proceedings commenced by Shri A. K. Verma, JMFC, Gwalior, shall continue, to comply with the direction made in these matters by this Court on 10-8-19901 Two common respondents in all these 10 matters have been heard; one Nirbhay Kumar, is reported untraceable. The view taken by this Court on 23-6-1990 in M. P. No. 724/90 we reiterate and hold that if any person is aggrieved by the “warrant of authorisation” issued in these cases, in regard to the custody of silver seized from the said Nirbhay Kumar, he may challenge the warrants in separate proceedings.
10A. Shri K. S. Shrivastava prayed that a direction be made to the Superintendent of Police, G.R.P (B.G.) at Bhopal to pursue the matter and take necessary steps for recovery of silver whether from Gwalior or from Mathura. We have no doubt that he can do that inasmuch as the offence’ for which Nirbhay Kumar was booked, and the seizure of the silver from him, had taken place at Gwalior.
11. Section 11(3), Criminal Procedure Code empowers the High Court “to confer powers of Judicial Magistrate or of the First Class or Second Class on any member of Judicial Service of the State functioning as a Judge in a Civil Court.” Accordingly, power has been conferred by this Court on Smt. Bhatt to act as Second Additional Chief Judicial Magistrate, Gwalior, as it was thought “expedient” to do so. Section 34(1), Criminal Procedure Code invests the High Court as also the State Government jurisdiction to withdraw all or any of the powers conferred by it under this Code on any person or by any officer subordinate to it. We have no doubt in appropriate cases it becomes the duty of the High Court to exercise its power under Section 34(1), Criminal Procedure Code in the matter of sustaining public confidence in the administration of justice. Indeed, this duty assumes significance when it appears from cogent material brought to its notice that it is fit and expedient not to allow that power to be exercised by any Civil Judge. We have today, before us, cogent and adequate material to take that view that it will not be in the public interest to allow Smt. Bhatt to continue to exercise powers under Section 11(3), Criminal Procedure Code as it is necessary to uphold high traditions of judiciary at all levels and maintain public confidence in administration of justice. We recommend that powers conferred on her thereunder be withdrawn.
12. We direct the Bench Registry to send to the Main Registry a copy of this order as also of the order passed by us in this matter on 10-8-1990 along with copies of impugned order and that of Smt. Bhatt’s report/explanation. A copy of order passed by this Court on 23-6-1990 in M. P. No. 724/90 shall also be sent therewith. The question of withdrawal of powers herein commended shall be placed for consideration of the Full Court in the next meeting. Till then, our interim direction made to the learned District and Sessions Judge, Gwalior, must continue. She shall not be given any criminal work till such time as decision of the Full Court in the next meeting, in regard to the recommendation made herein.
A copy of this order shall be kept on the record of all the nine connected matters.