IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 Crl.MC.No. 4369 of 2008() ------------------------- CRMP.4276/2008 of CHIEF JUDICIAL MAGISTRATE COURT, PATHANAMTHITTA .................... PETITIONER: ------------- V.N.RADHAKRISHNAN, VENMELIL KIZHAKKETHIL HOUSE, PAZHAVANGADI.P.O. BY ADV. SRI.V.SETHUNATH SRI.TOM JOSE PADINAJREKKARA RESPONDENTS: ----------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2. THE MANAGER, STATE BANK OF TRAVANCORE, RANNI. BY SR.GOVT.PLEADER SHRI BENJAMIN PAUL FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: “CR” K. BALAKRISHNAN NAIR & M.C. HARI RANI,JJ ============================== CRL.M.C.NO. 4369 OF 2008 ============================ DATED THIS THE 20TH DAY OF NOVEMBER 2008 ORDER Balakrishnan Nair,J. This criminal miscellaneous case has come up before the Division Bench for admission, on a reference made by a learned single Judge of this Court. The reference order reads as follows: “In a non-metropolitan area is it the District Magistrate (Executive Magistrate) or the Chief Judicial Magistrate (Judicial Magistrate) who is to exercise the jurisdiction under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the Act)? This is the question raised again before this Court in this Crl.M.C. 2. The question appears to have been concluded by the decision of the Division Bench of this Court in Muhammed Ashraf v. Union of India (2008 (4) KLT 1). But the learned counsel for the petitioner contends CRL.M.C.No.4369 /2008 -2- that the said decision requires re-consideration for the short reason that the attention of the Division Bench has not been drawn to the provisions of Section 3(4) of Cr.P.C. 3. The counsel points out that the decision in Muhammed Ashraf (supra) very clearly shows that the jurisdiction under Section 14 of the Act is not judicial in nature. But while considering whether the jurisdiction under Section 14 of the Act must be exercised exclusively by an Executive Magistrate or the Chief Judicial Magistrate in a non-metropolitan area, the learned Judges have not considered the provisions of Section 3(4) Cr.P.C., which according to the counsel, must be reckoned to be of crucial assistance in resolving the controversy. The learned counsel further points out that the decision of the Full Bench in Mammoo v. State of Kerala (AIR 1980 Kerala 18) has not been brought to the notice of the learned Judges of the Division Bench. The learned counsel for the petitioner advances a contention strenuously that at least in respect of non-metropolitan areas the jurisdiction under Section 14, which is essentially an administrative and a non-judicial function, going by the provisions of Section 3(4) of the Code, must have been left in the jurisdiction of an Executive Magistrate. 4. The learned counsel for the petitioner prays that the petitioner may be given an opportunity to raise this contention before the Division Bench and CRL.M.C.No.4369 /2008 -3- persuade the Division Bench to reconsider the matter and refer the question to a larger Bench. 5.Having considered all the relevant circumstances, I am persuaded to agree that the matter deserves to be disposed of by a Division Bench. 6. The Registry shall place the matter before a Division Bench for necessary orders and disposal under Section 3 of the Kerala High Court Act.” 2. Before considering the above legal question referred, we think, it will be fruitful to refer the skeletal facts necessary for the disposal of this matter. The petitioner, along with others, is indebted to the State Bank of Travancore, Ranni Branch, the Manager of which is the second respondent herein. The mortgaged assets of the defaulters are going to be taken over by the Bank under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act,2002 (hereinafter referred to as ‘the Act’). Notice under Section 13(2) of the Act was already issued. Now the stage has reached to take over the property physically. So, the Bank moved the Chief Judicial Magistrate, Pathanamthitta under Section 14 of the Act. The learned Magistrate appointed Mr.Nishad, Advocate, as the CRL.M.C.No.4369 /2008 -4- Advocate Commissioner, who is the second respondent in W.P. (C).No.33084/08, a copy of which is produced as Annexure-2 in this Crl.M.C., to take over the property and deliver the same to the Bank. The said Commissioner has issued Annexure-1 notice to the petitioner and his brother, pursuant to the orders passed by the learned Chief Judicial Magistrate under Section 14 of the Act. This Crl.M.C. was filed to quash the proceedings of the Chief Judicial Magistrate, Pathanamthitta in the application made by the Bank under Section 14, which was numbered as Crl.M.P.No.4276/2008 of that court. 3. The point raised for our consideration by the learned counsel for the petitioner is that the decision of the Division Bench of this Court in Muhammed Ashraf v. Union of India, (2008(4)K.L.T. 1) requires reconsideration. The Division Bench in that decision took the view that the Chief Judicial Magistrate in a non-metropolitan area can exercise the powers of the Chief Metropolitan Magistrate in a metropolitan area under Section 14 of the Act. The learned counsel for the petitioner pointed out that the Division Bench rendered the decision without adverting to Section 3(4) of the Code of Criminal Procedure. The functions CRL.M.C.No.4369 /2008 -5- discharged by the Magistrate under Section 14 of the Act are essentially administrative and not judicial. So, the Chief Judicial Magistrate, who is to discharge only judicial functions, cannot be asked to discharge the administrative or non-judicial function under Section 14 of the Act. So, the interpretation given to Section 14 of the Act by the Division Bench in the above decision requires reconsideration. Based on that submission, the learned single Judge, who heard the matter, prima facie, held that the above point requires reconsideration by a Division Bench, so that if it appeals to the Division Bench, the matter can be referred to the Full Bench. 4. This is a petition under Section 482 of the Code of Criminal Procedure. The proceeding sought to be challenged is not one taken under the provisions of the said Code, but it is one under Section 14 of the Act. So, the Crl.M.C.filed under Section 482 is not maintainable, in view of the statutory bar contained in Section 14 (3) of the Act, which reads as follows: 14.Chief Metropolitan Magistrate or District Magistrate to assist secured creditor in taking possession of secured asset. CRL.M.C.No.4369 /2008 -6- xx xx xx xx (3) No act of the Chief Metropolitan Magistrate or the District Magistrate done in pursuance of this section shall be called in question in any court or before any authority.” 5. The High Court, while exercising the power under Section 482 of the Code of Criminal Procedure, is exercising only its inherent powers saved by that section. That power can be exercised only subject to the provisions of the Cr.P.C. and also other enactments concerning the subject -matter. This point is squarely covered by the decision of the Apex Court in State of Himachal Pradesh v. Dhanwant Singh, ( AIR 2004 SC 1636). The relevant portion of the said decision reads as follows: “4.The only question which needs to be adjudicated is whether the High Court could have exercised power under S.482 of the Code or Art.227 of the Constitution. It is to be noted that the High Court did not specifically examine whether it could exercise the powers under the aforesaid provisions but did not do so on the ground that case for interference was not made out. Though in the light of the specific stipulation in S.59(3), not only mere finality has been CRL.M.C.No.4369 /2008 -7- accorded to the order passed under S.59(2) but the legislative mandate also further stated that “shall not be questioned in any Court of law,” it may not be permissible to invoke S.482 of the Code, the same cannot be an impediment to deal with the revision as one under Art.227 of the Constitution of India.” The Apex Court in the above decision was interpreting Section 59 (3) of the Forest Act, 1927 (as amended by Himachal Pradesh Act 15 of 1991) which reads as follows: “S.59(3):- The order of the Sessions Judge under sub- section (2) shall be final and shall not be questioned in any Court of law.” 6. The principles laid down by the Apex Court in Satya Narayan Sharma v. State of Rajasthan, [ (2001)8 SCC 607] will also bar a petition under Section 482 of the Cr.P.C. against an action taken under Section 14 of the Act. In the said decision, the Apex Court held that the bar under Section 19(3) of the Prevention of Corruption Act, 1988 against the grant of stay of proceedings will affect the powers of the High Court under Section 482 of the Code of Criminal Procedure. In the said decision the Apex Court held as follows: CRL.M.C.No.4369 /2008 -8- “Section 482 of the Criminal Procedure Code does not provide that inherent jurisdiction can be exercised notwithstanding any other provision contained in any other enactment. Thus if an enactment contains a specific bar then inherent jurisdiction cannot be exercised to get over that bar. As has been pointed out in the cases of Madhu Limaye v. State of Maharashtra, Janata Dal v. H.S.Chowdhary and Indra Sawhney v. Union of India, the inherent jurisdiction cannot be resorted to if there was a specific provision or there is an express bar of law.” 7. In view of the above position, this petition under Section 482 of the Code of Criminal Procedure challenging the proceedings of the Chief Judicial Magistrate, Pathanamthitta is not maintainable. We do not propose to dispose of the Crl.M.C. on this technical ground. On merits also, we find that the petitioner does not have any case. The reliance placed by the learned counsel for the petitioner on Section 3(4) of the Code of Criminal Procedure is unsustainable. Section 3(4)reads as follows: “(4) Where, under any law, other than this Code, the functions exercisable by a Magistrate relate to matters- CRL.M.C.No.4369 /2008 -9- (a) which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or (b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate.” 8. The above provision is applicable, if statutory functions under an Act are assigned to a “Magistrate”. If only the word “magistrate” is used, then, in order to ascertain whether it refers to the Judicial Magistrate or Executive Magistrate, the functions vested in the Magistrate have to be examined in the light of Section 3(4). In this case, the words employed by the Parliament are “the Chief Metropolitan Magistrate or the District Magistrate”. So, the Parliament, in its wisdom, has chosen to confer functions, even if they are executive functions, on a judicial officer. As long CRL.M.C.No.4369 /2008 -10- as that provision is not under challenge, the courts are bound to give effect to that provision. In view of the explicit use of the words “Chief Metropolitan Magistrate”, we are of the view that the reliance placed on Section 3(4) of the Code of Criminal Procedure, by the petitioner is plainly misplaced. The Division Bench in Muhammed Ashraf v. Union of India (supra) has interpreted S.14 and held that the Chief Metropolitan Magistrate mentioned in that section will include the Chief Judicial Magistrate in non-metropolitan areas. The said interpretation does not suffer from any infirmity for non-consideration of Section 3(4) of the Code of Criminal Procedure. Further, we notice that the interpretation given by the Division Bench in the aforementioned decision is convenient for all and will advance the object of the legislation, that is, speedy recovery of the loan amount. It is common knowledge that the Executive Magistrate, who is the District Collector, is burdened with multifarious functions and it is very difficult for the lawyers to move any matter before the said officer. The Judicial Magistrate sits regularly according to notified schedule and the lawyers representing the parties can easily move such Magistrates and obtain appropriate orders. It CRL.M.C.No.4369 /2008 -11- is more convenient for all concerned. So, the interpretation adopted by the Division Bench, as mentioned by us earlier, only advances the object behind the enactment of the provision. For the above reasons, it is unnecessary to refer this Crl.M.C. to the Full Bench. 9. The learned counsel for the petitioner submitted that if the petition under Section 482 Cr.P.C. is not maintainable, this may be considered as a petition under Article 227 of the Constitution of India. Since we have already held that there is no merit in the case canvassed by the petitioner, it is unnecessary to treat this Crl.M.C. as a petition under Article 227 of the Constitution of India, as the outcome will not in any way be different. 10. We are not referring to the decisions cited by the petitioner interpreting Section 3(4) of the Code of Criminal Procedure, including the Full Bench decision in Mammoo v. State of Kerala, (AIR 1980 Kerala 18), which is referred in the order of reference,as we have already held that the said section has no application to the facts of this case. Further, the powers of the Parliament to confer certain non-judicial functions CRL.M.C.No.4369 /2008 -12- on a Judicial Magistrate by a special provision in a later enactment, are not fettered by the general provision, Section 3 (4) of the Code of Criminal Procedure or any interpretation given to that provision by the Courts. The observation made by this Court in Mammoo's case (supra) that only judicial functions can be entrusted to Judicial Magistrates, will not bind the Parliament, while legislating on a matter, it has competence to legislate. In the result, the Crl.M.C. fails and it is dismissed. K. BALAKRISHNAN NAIR, JUDGE M.C. HARI RANI, JUDGE ks.