Mooka Pandaram vs Sinnu Muthiriyan

Pandrang Row, J.—These are applications which arise out of an order of the District Magistrate of Trichinopoly staying the order of the

Sub-Magistrate of Turaiyur in M.C. No. 12 of 1936-pending the orders of the Sub-Divisional Magistrate, Musiri, to whom the District Magistrate

forwarded an application by one of the parties in M.C. No. 12 of 1936 u/s 144(4), Criminal Procedure Code. The Sub-Magistrate passed an

order on the application of the present petitioner prohibiting the counter-petitioners from interference with the performance of a certain festival by

the petitioner. Some of the counter-petitioners applied to the Sub-Divisional Magistrate of Musiri u/s 144(4), Criminal Procedure Code, for

rescinding the order, and thereupon the Sub-Divisional Magistrate after calling for the records passed an order confirming it except as regards

counter-petitioners 1 to 6 in respect of whom the order was set aside apparently because they gave an undertaking before the Sub-Divisional

Magistrate that they would not interfere with the conduct of the festival. It may be mentioned in this connection that these counter-petitioners 1 to 6

were not the petitioners before the Sub-Divisional Magistrate. In other words they did not seek any rescission of the original order of the Sub-

Magistrate. Thereupon one of the counter-petitioners, viz., the respondent in these petitions by name Sinnu Muthiriyan apprdached the District

Magistrate with a petition u/s 144, Criminal Procedure Code, pointing out certain alleged irregularities in the enquiry by the Sub-Magistrate and

also his objections to the procedure followed by the Sub-Divisional Magistrate and prayed that the order of the Sub-Magistrate should be

rescinded altogether and that the order should be suspended pending disposal of the petition. The District Magistrate passed the following order on

the application on the same date on which it was presented:

Endorsement forwarded to the Sub-Divisional Magistrate, Musiri, for enquiry and disposal:

The order of the Sub-Magistrate, Turaiyur, in M.C. No. 12 of 1936 is stayed pending orders of the Sub-Divisional Magistrate after enquiry.

This order, which appears to deal with the petition presented u/s 144(4), Criminal Procedure Code, almost as if it were one relating to a purely

administrative matter is objected to on three grounds, namely, (1) that the District Magistrate had no power to entertain an application to rescind

the order of the Sub-Magistrate after a similar application for rescission had been made to the Sub-Divisional Magistrate, and the latter had passed

orders thereon, (2) that the District Magistrate had no power to suspend the order of the Sub-Magistrate temporarily pending the result of the

enquiry ordered by him to be made by the Sub-Divisional Magistrate, and (3) that the District Magistrate had no power to transfer the case to the

Sub-Divisional Magistrate for disposal. I am of opinion that as regards the power of the District Magistrate to entertain an application u/s 144(4)

the power is not lost by reason of the fact that the Sub-Divisional Magistrate who is subordinate to him had already dealt with an application made

under that sub-section to him. The wide powers of rescission or alteration given by Sub-section (4) to Section 144 are necessary for the protection

of the subject. They are invoked not when a Subordinate Magistrate declines to pass an order under Sub-section (1) but only when an order is

passed thereunder interfering with the rights of subjects, and where an order of this kind, that is to say, an order which interferes with or limits the

rights of subjects is-passed, the law allows the Magistrate himself who passed the order to change his mind and rescind or alter the order and

allows every Magistrate superior to that Magistrate to do the same thing if he thinks fit. These are provisions intended for the protection of the

liberty of the subject and should be construed liberally; otherwise the final authority in the District who is to determine whether there should be any

interference with the liberty of the subject, and if so, to what extent for the purpose of maintaining public tranquillity or preventing breaches of the

peace will be the Sub-Divisional Magistrate, and the District Magistrate would be powerless to interfere with what he considers a needless

exercise by a Sub-Magistrate of the special powers given by Section 144(1), Criminal Procedure Code, if the Sub-Divisional Magistrate has

chosen to exercise his powers under Sub-section (4). In the circumstances of this case I am of opinion that the District Magistrate must be deemed

to have had the power if he thought fit to rescind or alter the order of the Sub-Magistrate, the order of the Sub-Divisional Magistrate being one

which is in effect a confirmation of the Sub-Magistrate''s order. The only alteration made in it was one which was of no consequence because the

persons affected by the alteration were themselves prepared to abide by the order.

As regards the other two questions raised in these petitions, viz., the power of the District Magistrate to suspend the order and the power to

transfer, I am of opinion that the contentions of the petitioner are well founded. A general power to suspend orders of Subordinate Magistrates is

not given to superior Magistrates expressly by the Code of Criminal Procedure and that power is sought to be based by the Public Prosecutor on

what is called the inherent power of the criminal Courts to pass such orders as are necessary in the interests of justice. The authorities on this point,

viz., the existence of inherent powers in criminal Courts in the mofussil are not uniform and it would appear as if the weight of authority in this

Province is against the proposition that there is such an inherent power. Section 144 permits any authority which has the power to rescind or alter

an order to do so after hearing only the party who applies for it and this hearing can be completed without delay, and there is no particular reason

why there should be a stay or suspension before such hearing. It is not a case in which the other side has to be given notice and has to be heard. In

all these cases u/s 144 it is really the liberty of the subject that is affected by the original order and though this interference might be made by the

Magistrate at the instance of, or when moved by, some private individual the superior authority can always rescind or alter the order without

hearing the person at whose intance the original order was passed, the only limitation on his power being that he should hear the party who applies

for rescission or alteration before declining to do so.

As regards the power of transfer it has not been seriously argued by the Public Prosecutor that there is a power of transfer in a case of this kind.

The authority that was invoked by the application to the District Magistrate was the authority to rescind or alter conferred by Section 144(4) and

this authority cannot be delegated. It has been decided in Cr.R.C. No. 318 of 1914 that the power of rescinding the order lies only with the

Magistrate to whom the application is made and that the order of the District Magistrate to whom the application was made transferring the

application to a Sub-Divisional Magistrate is bad. The application made to the District Magistrate u/s 144(4), Criminal Procedure Code, cannot be

brought either u/s 192 or u/s 528, Criminal Procedure Code, which deal with the subject of transfer of cases. In. this particular case it would

almost appear as if the learned District Magistrate dealt with the application in an administrative way, and delegated his duty to the Sub-Divisional

Magistrate after suspending the order complained of. Moreover, the transfer to the very Sub-Divisional Magistrate who had already dealt with an

application relating to this very matter under the very same sub-section would not have been a proper exercise of the power of transfer even if any

such power really existed.

The District Magistrate''s orders suspending the order of the Sub-Magistrate and transferring the case to the Sub-Divisional Magistrate must be

therefore set aside, and the District Magistrate will have to deal with the application made to him himself according to law, and the proceedings

now pending before the Sub-Divisional Magistrate as a consequence of the order of the District Magistrate transferring the case to him must be

quashed.

I wish to make it clear at the same time that it will be open to the District Magistrate to rescind or alter the order or to decline to do so as he

thinks proper; and nothing that has been said by me should be deemed to influence in any way his discretion which in a case of this kind has to be

exercised for the protection of the rights of subjects consistently with the need for the preservation of the public tranquillity.

I direct further in the circumstances of the case that the Cancellation of the order of suspension shall take effect only from the date immediately

succeeding the date on which this order of the High Court is received by the District Magistrate.