Kunga and Others vs Joseph Anthey and Another

P. Govinda Menon, J.—This is a petition j under S. 561-A of the Criminal Procedure Code. It appears that the respondents filed a petition before the Executive First Class Magistrate, Cochin for issuing necessary orders to the police to render police protection so that there may not be any breach of the peace when he is constructing his compound wall. The petitioners complain that the rights of the respondents are disputed and that there is no provision of law either in the Code of Criminal Procedure or in any other enactment empowering a Magistrate to direct police to interfere in such matters. It is therefore contended that this court should interfere and quash the proceedings. Section 561-A comes into play only when the order impugned is passed by a court acting judicially. If trial order is passed by the Magistrate in his executive capacity and not as a court, S. 561-A will nave no application. A reading of the Section would show that the High Court will interfere if necessary when something contrary to law has been done by subordinate courts. Here in this case, the Executive First Class Magistrate is the person primarily concerned with the law and order position in his division. It is only to see that no breach of the peace occurred that the learned Executive First Class Magistrate issued instructions to the police. No cognizance has been taken by him in the strict sense of the term and no action has been taken by any ''court''. Reference may be made to the decision reported in Ahmad Din Vs. Bijha Singh, where it was held:

Section 561-A empowers the High Court to interfere if necessary when something contrary to law has been done by a subordinate court. It thus presupposes that there is an order of a court. But where an order is passed be a Magistrate in his executive capacity his order cannot be interfered under S. 561-A as that section has no application in such a case.

To the same effect is the decision in Kula Chandra Dutt Vs. Emperor, . In these circumstances whether the action of the Executive First Class Magistrate is proper or improper, it is clear that this court cannot treat it as an order of ''a court'' and no interference is therefore called for. The petition is dismissed.