Govinda Chetti and Others vs Perumal Chetti and Another

Sadasiva Ayyar, J.—In the absence of the Police Sub-Inspector''s report of the 22nd June 1913, on the basis of which the Salem Town

Sub-Magistrate passed his order of the 27th June 1913, I cannot see my way to hold that the said order passed u/s 144 of the Criminal Procedure

Code was an order passed without jurisdiction. The said report of the Sub-Inspector of Police is not part of the record sent to us and before (we

could send for and obtain it) the two months during which the order is to remain in force would expire and there would be no use in revising the

order after it is spent. I would, therefore, dismiss this petition, but I do not think it inappropriate to make some observations with reference to the

proceedings of the Lower Courts.

The Sub-Magistrate''s proceedings of the 15th July 1913, lend some justification to the argument addressed to us by the petitioners'' learned

Vakil that the Sub-Magistrate considered himself legally bound by the ""District Magistrate''s order which prohibits the procession,"" evidently in

perpetuity. The Sub-Magistrate while he ought to give due and very great respect to the advice of the District Magistrate, ought to have used his

own judicial mind on the Sub-Inspector''s report and have come to his own conclusion whether a temporary and emergent order u/s 144 ought to

have been passed. The general ""instructions"" of the District Magistrate are not legally binding on the Sub-Magistrate in particular cases. Again there

is some force in the petitioners'' learned Vakil''s contention that the Magistracy at Salem are, under the shelter of Section 144 of the Criminal

Procedure Code (which relates to the passing of provisional orders to tide over temporary emergencies and in cases where ""immediate prevention

or speedy remedy is desirable ""), the Magistracy are under the shelter of that section trying to clutch at a much more extensive jurisdiction namely a

jurisdiction to prohibit the petitioners by a permanent injunction from taking processions (throughout an indefinite future period) along the streets of

Salem. I have no doubt that u/s 15 of the Charter Act, we are entitled to prevent such indirect evasion by the Magistracy of the law as laid down in

Section 144 [see Remjit Singh v. Luchman Prasad (1902) C.W.N., 140, Satish Chandra Roy v. The Emperor (1906) 11 C.W.N. 79 , Gopi

Mohun Mullick v. Taramoni Chowdhrani (1880) L.R., 5 Calc., 7 and Queen Empress v. Pratap Chunder Ghose I.L.R., (1898) Calc., 852, the

observations in which cases indicate that the arm of the law is long enough to prevent such evasion of the Coda by arbitrary and successive

renewals of orders passed u/s 144 and that the powers given to the High Court under Clause 15 of the Charter Act are sufficient to prevent such

evasion).

The District Magistrate''s order of the 23rd July 1913, refusing to set aside the Sub-Magistrate''s order of the 22nd June 1913 does not state

that there was again a temporary emergency and a continuing or existing insufficiency of the Police force to protect the petitioners in exercise of

their rights. Unless such a ground is expressly mentioned and is prima facie established in any future order passed in connection with this question,

the presumption would, in my opinion, be very strong that the order was passed merely in order to evade the provisions of Section 144 and that

the Magistracy are attempting to give themselves a much more extended jurisdiction than is covered by Section 144 of the Criminal Procedure

Code.

With these observations I would dismiss this Revision Petition.

Miller, J.

I agree in the order proposed, and entirely concur in my learned colleague''s observations, as to the attempt which, there seems reason to fear,

the District Magistrate of Salem is making, to obtain a jurisdiction wider than that given him by Section 144 of the Code of Criminal Procedure.