• Doctrine of Implied Power Applied
  • Chief Judicial Magistrate is competent to grant stay to proceeding in the Court of Judicial magistrate during hearing on transfer application.

Kerala High Court

Thottuvarambath Velayudhan vs Pottayil Aboobacker Haji And Anr.

Decided on : 12 January, 1979

Equivalent citations: 1980 CriLJ 181

Bench: K P Amma

1. The petitioner is the complainant in C. C. 75 of 1977 on the file of the Judicial Magistrate, First Class, Tirur. The complaint was filed against the 1st respondent, who is the Circle Inspector of Police, Nilambur alleging acts of torture of the petitioner and another Harijan in the course of an incident which took place on the 25th of June, 1976. The 1st respondent filed C.M.P. 7 of 1978 under Section 410 of the Cr. P. C. for transfer of the case to some other court within the jurisdiction of the Chief Judicial Magistrate, Manjeri. The reasons mentioned for transfer are not relevant for the disposal of this petition. Pending disposal of the petition, the 1st respondent filed C.M.P. 167 of 1978 for stay of proceedings in C. C. 75 of 1977 till the disposal of C.M.P. 7 of 1978. The Chief Judicial Magistrate allowed the petition. The present petition is filed under Section 482 of the Cr. p. C. for quashing the order of stay.

2. The contention put forward on behalf of the petitioner is that the Chief Judicial Magistrate has no jurisdiction to stay trial of the proceedings, pending orders of withdrawal under Section 410 of the Cr. P. C. Reference was made to Sections 407(6) and 408(3) where specific provision is made for stay of trial of cases pending disposal of application for transfer made before the High Court and the Sessions Judge, The petitioner would contend that the absence of a similar provision in relation to Section 410 of the Cr. P. C. would only show that the Chief Judicial Magistrate is not competent to stay the trial of the case pending decision on the petition seeking withdrawal.

3. There is an apparent difference between the power of transfer conferred under Sections 407and 408 of the Cr. P. C. and the power of withdrawal vested in the Sessions Judge and the Chief Judicial Magistrate under Sections 409 and 410 of the Code. This is evident by a comparison ofSection 408 which deals with power of transfer of cases conferred on the Sessions Judge andSection 409 which deals with power of withdrawal vested in the same Judge. Unlike Section 407(i)(iv) which refers to the High Court, Section 408 does not empower a Sessions Judge to transfer cases and appeals for trial or disposal by himself. This is because a Court of Session ordinarily gets jurisdiction to try a case only on the same being committed to it by a Magistrate as provided in Section 193 of the Cr. P. C. and under Chap. XXIX of the Code appeals are filed either before the High Court or the Court of Session. The Sessions Judge only makes over cases and appeals filed before it. The power of making over cases in the case of the Chief Judicial Magistrate and the Sessions Judge are contained in Sections 192 and 194 of the Code. A Chief Judicial Magistrate is competent under Section 410 of the Code to try any case pending before any of the Subordinate Magistrate, by withdrawing the case to his file and can also make over any case pending in his Court for trial by a Subordinate Magistrate competent to try the case. Under the scheme envisaged in Sections 409 and 410 of the Cr. P. C., a Sessions Judge and the Chief Judicial Magistrate can transfer a case pending in a Court only by withdrawing the case to his file first and then making over the same to another court competent to try it. Such making over and withdrawal are functions of the Sessions Judge and Chief Judicial Magistrate, enjoined under the Code for distribution of work among the Additional and Assistant Sessions Judges and the Subordinate Magistrates which they exercise without any motion from any party. Therefore, no question of stay is ordinarily involved in the exercise of powers under Sections 409 and 410. But there is nothing in the Code to suggest that the power of withdrawal in Sections 409 and 410and that of making over under Sections 192 and 194 are confined to a stage prior to the commencement of trial or that the powers are not to be exercised at the instance of a party to the proceedings. The Court while exercising power under Section 409 or Section 410 at the instance of a private person can do it only after making an enquiry into the merits of the motion. The power would be infructuous if before the enquiry is completed the case is disposed of by the Court ‘where it is pending. It follows that for an effective exercise of the power, the proceedings before the court where the case is pending should be stayed in appropriate cases. An implied power to stay proceedings can be inferred under the circumstances.

4. It is a well-known principle of interpretation of Statutes that whenever anything is authorised or when an act is required to be done by law and it is found impossible to do that thing unless something not authorised in express terms is also done, then that something will be supplied by necessary intendment. The doctrine has been adopted by the Supreme Court in B.B.L. & Tobacco Merchants’ Association v. Bombay State . The reasoning is contained in para 20 of the decision:

(20) One of the first principles of law with regard to the effect of an enabling act”, observes Craies, “is that a Legislature enables something to be done, it gives power at the same time by .necessary implication to do everything which is indispensable for the purpose of carrying out the purposes in view”. The principle on which this doctrine is based is contained in the legal maxim ‘Quando Lex aliquid concedit concedere videtir et illud sine quo res ipsa case non potest’. This maxim has been thus translated by Broom thus; “Whoever grants a thing is deemed also to grant that without which the grant itself would be of no effect”. Dealing with this doctrine Pollock, C. B., observed in Fenton v. Hampton (1858) 117 RE 32 at p. 41 : 11 Moo PC 347 “It becomes therefore all important to consider the true import of this maxim, and the extent to which it has been applied. After the fullest research which I have been able to bestow. I take the matter to stand thus : Whenever anything is authorised, and especially if, as matter of duty, required to be done by law, and it is found impossible to do that thing unless something else not authorised in express terms be also done, then that something will be supplied by necessary intendment.” This doctrine can be invoked in cases “where an Act confers a jurisdiction it also confers by implication the power of doing all such acts, or employing such means, as are essentially necessary to its execution”. In other words, the doctrine of implied powers can be legitimately invoked when it is found that a duty has been imposed or a power conferred on an authority by a statute and it is further found that the duty cannot be discharged or the power cannot be exercised at all unless some auxiliary or incidental, power is assumed to exist. In such a case,’ in the absence of an implied power the statute Itself would become impossible of compliance. The impossibility in question must be of a general nature so that the performance of duty or the exercise of power is rendered impossible in all cases. It really means that the statutory provision would become a dead-letter and cannot be enforced unless a subsidiary power is implied.

The above principle is applicable in the, instant case. If during the pendency of the application for withdrawal, the case itself is disposed of by the Court, the application itself would be infructuous. It is, therefore, necessary for the Court to stay the trial of the case by the concerned Magistrate till the Chief Judicial Magistrate decides whether the case should be withdrawn to his file or should be made over to some other court. There was nothing improper in the order of stay issued and it does not call for interference by this Court. The petition is accordingly dismissed