Muthuswami Servaigaran and Another vs Thangammal Ayiyar

This Criminal Revision Petition has been posted before us for a decision upon two preliminary points.

The facts are that the Sub-divisional Magistrate of Pattukottai, in exercise of his powers u/s 144, Criminal Procedure Code, directed the

petitioners to vacate the Nagaram Palace building forthwith on the ground that the occupation caused annoyance and obstruction to the

Zamindarini and was likely to cause an immediate disturbance of the public tranquillity and a riot. In accordance with this order the Palace was

vacated and an application was subsequently made under Sub-section (4) of Section 144, Criminal Procedure Code, to the Additional District

Magistrate of Tanjore to rescind the order of the Sub-divisional Magistrate of Pattukottai. This application he rejected. The original order was

dated 23rd January, 1929 and the order rejecting the petition was on the 23rd February. The petitioners then presented this revision petition.

When it came on for hearing before Reilly, J., in view of the question raised, namely, whether the High Court has power to interfere in revision with

orders u/s 144, Criminal Procedure Code and the importance of that question he directed that the petition should be heard by a Bench of two

Judges. Another question raised before him was whether the petition is out of time because orders u/s 144, Criminal Procedure Code, are in force

only for two months. This question also has been left for this Bench to decide.

Dealing with the latter question first, on the assumption that the Sub-divisional Magistrate acted within his jurisdiction in passing the order, it

cannot be questioned that, as the two months have now elapsed since the order was passed, the High Court has nothing to revise. The question as

to whether or not the Sub-divisional Magistrate had jurisdiction to make the order is one of the matters raised in the petition but we are not

disposing of that question here as that is not one of the preliminary questions we have to decide. In view of the fact that the High Court has now no

order to revise the determination of the larger and more important question as to whether such orders are revisable would be unnecessary but for

the fact that two petitions which came on recently for hearing before Anantakrishna Aiyar, J., were ordered to stand over pending the decision by

us of this point and we accordingly allowed the matter to be argued.

It is necessary, first of all, to trace the history of Sections 144 and 435 of the Code of Criminal Procedure. In the Code of 1861 Section 62

corresponds to the present Section 144 and Section 404 corresponds to Section 435. Section 404 reads as follows:

The Sudder Court may, on the report of a Court of Session or of a Magistrate, or whenever it thinks fit, call for the record of any criminal trial or

the record of any judicial proceeding of a Criminal Court, other than a. criminal trial, in any Court within its jurisdiction, in which it shall appear to it

that there has been error in the decision on a point of law, or that a point of law should be considered by the Sudder Court, and may determine

any point of law arising out of the case, and thereupon pass such order as to the Sudder Court shall seem right.

The earliest decision upon the point we have to decide was under the Code of 1861 and that is Abbas Ali Chowdhry v. Illim Meah and Ors.

(1870) 14 W.R. (Cr.) 46 (F.B.). That was a decision of a Full Bench of the Calcutta High Court which decided, Phear, J., dissenting, that an

order passed by a Magistrate u/s 62 of the Code of Criminal Procedure is not of the nature of a judicial proceeding and therefore cannot be

interfered with by the High Court u/s 404 of that Code. Couch, C.J., in his judgment on page 51 in referring to Section 62 says:

The language of it seems to point out that it was intended to give the Magistrate a power to be exercised with the utmost promptitude; and, if he

should make an order which he had no authority to make, and the party on whom that order is made should not obey it, and be convicted, its

legality may then be tried. That is the ground upon which I have always been of opinion that this is not a judicial proceeding.

In the Code of 1872 Section 518 corresponds to Section 144 of the present Code and Section 520 states that orders made u/s 518 are not

judicial proceedings. This latter section was obviously the result of the decision of the Full Bench of the Calcutta High Court already referred to.

Under the Code of 1872 we have two decisions upon this point, namely, E.V. Ramanuja Jeeyarswami v. Ramanuja Jeeyar I.L.R.(1881) M. 354 a

decision of Innes and Muthuswami Aiyar, JJ., in which it was held that proceedings u/s 518 of that Code are not revisable by the Courts as such

orders were expressly declared in that Code to be not judicial proceedings and Sundram v. The Queen., Ponnuswami v. The Queen I.L.R.(1883)

M. 203 (F.B.), where at page 222 Sir Charles Turner stated:

It should always be borne in mind that orders u/s 518 of the Code of Criminal Procedure, 1872, are not judicial proceedings, and if the High Court

has power to correct them otherwise than indirectly, which is doubtful, that power can rarely be exercised in time to prevent hardship. The law in

sanctioning this imperfectly controlled power is careful to provide it shall be committed only to Magistrates whose discretion is presumably

guaranteed by their responsible position or by selection.

The next decision is one under the Code of 1882 and it is a decision strongly relied upon by Mr. Jayarama Aiyar in support of his argument that

proceedings u/s 144 of the Code are judicial proceedings. That is In Re: Tirunarasimha Chariar, in which it was held by Sir Arthur Collins, C.J.,

and Parker, J., that a Magistrate making an enquiry before issue of an order u/s 144 of the Code is acting in a stage of a judicial proceeding and

has, therefore, jurisdiction to direct the prosecution of a witness for giving false evidence before him at such enquiry. Under the Code of 1882,

differing from the Code of 1872, proceedings u/s 144 were stated to be not proceedings. In that case Sir Arthur Collins stated:

The difficulty arises from the variation in language between Section 297 of the old Code and Section 435 of the present Code. Under the old

Code powers of revision were granted to the High Court in judicial proceedings only, and the enacting of Section 520 would seem to imply that,

but for that section orders u/s 518 would be ''judicial proceedings.'' Section 435 of the present Code enables the High Court to call for the record

of ''any proceeding before any inferior Criminal Court,'' and, therefore, orders u/s 144 would certainly be subject to revision, were it not for the

proviso in the third clause of the section. u/s 4 of the present Code ''judicial proceeding'' is defined to be ''any proceeding in the course of which

evidence is or may be legally taken.'' it seems to us impossible to deny that a Magistrate acting u/s 144 may legally take evidence before issuing an

order. . . . From this it would appear that both under the old Code and under the present Code these urgent orders were regarded as in their

nature ''judicial proceedings,'' the only difference being that whereas under the old Code, Section 520, somewhat inaccurately declared them to be

not judicial proceedings for the purpose of ousting the High Court''s powers of revision u/s 297, the present Code equally bars the High Court''s

jurisdiction without making an illogical declaration.

Sir Arthur Collins, therefore, took the view that when in the Code of 1872 proceedings u/s 518 were declared not to be judicial proceedings it

was not because they were not judicial proceedings but because it was intended to prevent these orders made upon sudden emergencies from

being the subject of revision and the Code of 1882 by stating that they were not proceedings more accurately described them. The next Code to

be considered is that of 1898 and it is similar to the Code of 1882 in that by Sub-section (3) of Section 435 orders made u/s 144 are not

proceedings within the meaning of Section 435. On the 1898 Code there is a decision in Arunachallam Pillai Vs. Ponnuswamy, of Sadasiva Aiyar

and Napier, JJ., which is strongly relied upon by Mr. Jayarama Aiyar in support of his argument. In that case it was held that the High Court has no

appellate or revisional power to interfere with the orders of a public servant except in so far as they are orders passed by the public servant in his

capacity of a Court subordinate to the High Court and that an order passed by a Sub-Magistrate u/s 144 of the Criminal Procedure Code is an

order made by him in his capacity as a Court and he is also acting as a Court when he grants or refuses sanction for a prosecution for the

disobedience of such order. In that case the order passed u/s 144 of the Code had been disobeyed but the Stationary Sub-Magistrate passed an

order refusing sanction to prosecute the person who had disobeyed the order and Napier, J., on page 66, says:

We are clear that the Stationary Sub-Magistrate in passing this order refusing sanction was acting judicially, for the original order which it was

alleged was disobeyed was an order passed tinder Section 144, Criminal Procedure Code. These orders have always been treated as judicial

orders and we cannot separate the authority issuing the order from the authority granting sanction for disobedience of it.

When Napier, J., stated that these orders have always been treated as judicial orders he was referring to the numerous cases to which our

attention has been drawn where the High Court has interfered with orders passed u/s 144 of the Code on the ground that the Magistrate had no

jurisdiction to pass such orders. The High Court obviously could not in the face of the Code revise those orders but interfered on the question of

want of jurisdiction alone u/s 15 of the Charter Act and Section 107 of the Government of India Act. As he points out in his judgment the High

Court could have no appellate or revisional power if the Magistrate acts administratively and it is only where he acts judicially that the High Court

can possibly interfere under the Charter Act or the Government of India Act. We have, therefore, this position that the High Court has always been

acting under its inherent powers and interfering with Magistrates who have acted u/s 144 without jurisdiction but has been expressly prevented

from revising the orders of these Magistrates u/s 435 It is argued from this by Mr. Jayarama Aiyar that it was, not because such orders were not in

the nature of judicial proceedings that the power of the High Court to revise them was ousted but because it was undesirable that the discretion of

Magistrates acting very often on a sudden emergency should be revised by the High Court and that whereas in 1872 such ""proceedings were said

not to be judicial proceedings"" in 1882 they were said not to be proceedings within the provisions of Section 435 and the same under the Code of

1898, that bar to the High Court has now been removed by the Code of 1923 where Sub-section (3) of Section 435 has been omitted.

We now come to the Code of 1923. But before doing so there is another case to which reference has been made which, although it was

decided in 1923, was before the Code of that year came into force. That is Nataraja Pillai Vs. Rangasami Pillai and Others, a decision of Ayling

and Ramesam, JJ. The facts in that case were that a Sub-divisional Magistrate passed an order u/s 144, Criminal Procedure Code, prohibiting

certain persons from interfering with a religious ceremony. On disobedience of that order he sanctioned their prosecution for an offence u/s 188,

Indian Penal Code, and it was held that the Magistrate was not, when passing the order u/s 144, Criminal Procedure Code, acting as a Court

within the meaning of Clause (7) of Section 195 of the Criminal Procedure Code, but was only acting as a public servant and hence the proper

appellate authority to revoke the sanction was not the Sessions Court but the District Magistrate as provided by Clause (6) of Section 195. The

decision of Sadasiva Aiyar and Napier, JJ., in Arunachallam Pillai Vs. Ponnuswamy, was not followed. The Court followed the Calcutta Full

Bench case and also relied on Sundram v. The Queen, Ponnuswami v. The Queen I.L.R.(1883) M. 203 (F.B.). But that was a decision under the

Code of 1872 which expressly stated that proceedings under the corresponding section to Section 144 were not judicial proceedings and the Full

Bench in that case could not possibly therefore have held that the proceedings were judicial proceedings. Moreover, the judgment in Nataraja Pillai

Vs. Rangasami Pillai and Others, does not deal with the other aspect of the case presented by Napier, J., namely, that such orders must be judicial

orders and not administrative, for otherwise the High Court could not interfere in those cases where the Magistrate has acted without jurisdiction,

whereas the High Court has invariably done so under the Charter Act and the Government of India Act. No doubt most of the orders passed by a

Magistrate do not in the least seem to be judicial proceedings, and Ayling, J., gives such an instance on page 59, Then came the Code of 1923 and

there Sub-section (3) to Section 435 is omitted and one question to be considered by us is, what is the effect of that omission? There have been

two decisions with regard to this question under that Code (1) Vedappan Servai and Others Vs. M. Periannan Servai and Others, and (2) Suthadi

Alaga Thevar v. G. A. Baker, which is reported in a foot-note to the former report. The former decision is one of Ramesam, J., and the latter is

one of Reilly, J., following Nataraja Pillai Vs. Rangasami Pillai and Others, already referred to In Vedappan Servai and Others Vs. M. Periannan

Servai and Others, , Ramesam, J., held that no revision lies to the High Court against an order passed u/s 144 of the Criminal Procedure Code as

the Magistrate acting under that section is not a Court and the amendment of Section 435 of the Criminal Procedure Code by the omission of

Clause (3) from that section has not the effect of permitting a revision to the High Court from such an order, though it has the effect of permitting a

revision from an order u/s 145. On page 623, Ramesam, J., states:

It seems to me that as to Section 144, Clause (3), Section 435 was somewhat redundant and only made matters clear. Even without it, it is

doubtful whether Section 435 applies. There is nothing in Section 144 to indicate that the Magistrate acting under that section is a Court as in the

case of Section 145.

He was referred to a decision of the Privy Council in (1912) L.R. 39 I.A. 163 (Privy Council) but in his opinion that case did not help the

petitioner because it only showed that in some parts of the Code the words ""Courts"" and ""Magistrates"" are used interchangeably and that u/s 96 a

Magistrate issuing search warrants was acting as a Court but this did not conclude the matter as to Section 144. The Privy Council case is

reported in (1912) L.R. 39 I.A. 163 (Privy Council) and, in our view, it is a decision strongly in support of Mr. Jayarama Aiyar''s contention.

There the District Magistrate issued a search warrant in connection with the investigation of some offence. A suit for trespass against him was

instituted but it was held by the Privy Council that by Section 36, Schedule III, and Section 96 of the Criminal Procedure Code the power of

issuing a search warrant was among the ""ordinary powers"" of the District Magistrate and therefore u/s 105 he had power to direct a search to be

made in his presence if he thought it advisable to do so. Lord Macnaghten in delivering the judgment of the Judicial Committee referred to Section

36 of the Criminal Procedure Code which is as follows:

All District Magistrates, Sub-divisional Magistrates, and Magistrates of the first, second, and third classes have the powers hereinafter respectively

conferred upon them and specified in the Third Schedule. Such powers are called their ''ordinary powers''.

Section 36 is in Chapter III which is headed ""Powers of Courts,"" When Schedule III is referred to it will be seen that under Part IV of that

schedule which is headed ""Ordinary Powers of a Sub-divisional Magistrate"" Clause (6) is power to make orders u/s 144. On page 176, Lord

Macnaghten states:

For the sake of brevity the Code uses the terms ''Court'' and ''Magistrate'' generally, if not always as convertible terms.

It is impossible to avoid the conclusion that this case decides that every act done by a Magistrate in pursuance of the powers given to him by

Section 36 and Schedule III is done by him as a Court, particularly when it is remembered that the chapter is headed ""Powers of Courts."" The

present Code like the Code of 1898 and that of 1882 merely speaks of ""proceedings"" and not ""judicial proceedings"" so that it is not necessary

really to consider anything more than the power of the High Court to revise a ""proceeding before an inferior Criminal Court."" Although judicial

proceedings are defined in the Code as including ""any proceeding in the course of which evidence is or may be legally taken on oath,"" it was

admitted in argument before us that it may sometimes be necessary for the Magistrate before issuing an order u/s 144 to take evidence on oath, so

that, even if that test is applied, it would appear that these proceedings may be judicial proceedings. It is quite true that in the Calcutta Full Bench

case such proceedings were held not to be judicial proceedings, but that decision was not unanimous and it was undoubtedly in consequence of it

that the Code of 1872 described such proceedings as not judicial. The decision of the Full Bench of this Court in Sundram v. The Queen,

Ponnuswami v. The Queen I.L.R.(1883) M. 203 (F.B.) could not have been otherwise than it was, as we have already stated, because the Code

of 1872 stated that such proceedings were not judicial proceedings. There is also the other description to be applied, namely, ""proceedings of an

inferior Criminal Court."" The Privy Council case, in our view, makes such proceedings, proceedings of a Court, so that that description is also

applicable. If this is so, then we are bound to take a different view to that of Ramesam, J., in the case in Vedappan Servai and Others Vs. M.

Periannan Servai and Others, , where he says that Clause (3) to Section 435 was redundant. What is the effect of the omission of that clause in the

present Code? We cannot say that that omission was unintentional. We have to take the Code as it is. Up to the present Code, from 1872 until

1923, a ban was placed upon the High Court''s power of revision with regard to proceedings u/s 144. Now that ban has been removed. It may

have been unintentionally removed but we are not concerned with that. We must hold that the effect of that commission is that the ban is removed

and that the High Court has now power to revise such orders. We are aware that, if this decision is right, it may lead to most unfortunate

consequences. It is obvious that the Magistrate has most frequently to act in an emergency and that it will be a disaster, if, when he does make an

order, a Criminal Revision Petition is at once presented to the High Court and a stay order applied for. We come to the decision we have with

great regret and only say that, if Clause (3) to Section 435 was omitted by mistake, we hope that legislation will as soon as possible restore it, at

any rate as far as Section 144 of the Criminal Procedure Code is concerned.

Petition is dismissed as the order expired before the petition was presented.