Sivasubramaniam and Others vs T. Velusamy and Others

K.A. Swami, C.J.—This appeal is preferred against the order dated 12.11.1996 passed by the learned single Judge in W.P.No. 11552 of

1996, issuing a direction to the Sub Divisional Magistrate, Pollachi to decide the proceedings u/s 145, Crl.P.C. on or before 31.12.1996.

No doubt, in the writ petition initially the petitioner has sought for quashing the order dated 22.7.1996 in M.C.No. 74 of 1996 -- A1 passed by

the Sub Divisional Magistrate, Pollachi extending the period of the order passed u/s 144, Crl.P.C. Subsequently, the prayer came to be amended

and the following prayer was sought for:-

Pass appropriate Writs, Orders or Directions and more particularly a Writ of Declaration declaring that the order of the 1st respondent bearing

G.O.Ms.No. 917 Public (Law and Order-A) Department dated 16.8.1996 referred to in the counter affidavit of the first respondent as illegal and

without jurisdiction and consequently directing the 1st respondent to communicate the orders in M.C.No. 96 of 1996 issued u/s 145, Crl.P.C, and

to pass such further or other orders.

It is the amended prayer that has been considered by the learned single Judge. The learned single Judge has held that G.O.Ms.No. 917 Public

(Law & Order -A) Department dated 16.8.1996 cannot be quashed, because it is in the nature of an innocuous order as the proceedings u/s 144,

Crl.P.C. are pending.

We are of the view that the exercise of the jurisdiction under Art 226 of the Constitution in respect of order passed u/s 144 of the Code of

Criminal Procedure will depend upon the facts and circumstances of each case. In addition to that, an order passed u/s 144, Crl.P.C. is also

revisable by the Sessions Court or the High Court, u/s 397 of the Code of Criminal Procedure. The revisional power u/s 397, Cr.P.C. is also very

wide as it enables the High Court or the Sessions Court to examine the records of any proceeding before any inferior Criminal Court situated

within the local jurisdiction of the High Court or Sessions Court for the purpose of satisfying as to the correctness, legality or propriety of any

finding, or sentence or order recorded or passed and also the regularity of any proceeding of such inferior Court and to pass such orders as may

be considered necessary. The Explanation to Section 397(1) of the Code of Criminal Procedure makes the Executive Magistrate also as Inferior

to the sessions Judge, for the purpose of Section 398, Cr.P.C. which enables the High Court or the Sessions Court to order enquiry into any

complaint which has been dismissed u/s 203 or Sub- section (4) of Section 204, or into the case of any person accused of offence who has been

discharged. The Sessions Judge, u/s 399 of the Crl.P.C. is also empowered to exercise all or any of the powers which may be exercised by the

High Court under Sub-section (1) of Section 401 of the Crl. P.C. The revisional power u/s 401 of the Crl.P.C. is very wide. In the facts and

circumstances of the case, we are of the view that no interference under Article 226 of the Constitution is called for with the order passed u/s 144

of the Crl.P.C. when the proceedings u/s 145 of the Crl.P.C. are pending. The proper remedy, in the facts and circumstances of the case, is to

invoke the revisional jurisdiction of the sessions court or the High Court, as the case may be, as provided under the Code of Criminal Procedure.

In Gulam Abbas and Others Vs. State of Uttar Pradesh and Others, similar question arose. The Supreme Court, after holding that the revisional

jurisdiction can be exercised has also held that the jurisdiction under Article 226 of the Constitution can be exercised, if the order passed u/s 144

of the Crl.P.C. or u/s 37 of the Bombay Police Act has the effect of violating or infringing with the fundamental right of a citizen. Therefore, in the

instant case, there is no question of violation of any fundamental right. As such we see no reason to hold that the jurisdiction under Article 226 of

the Constitutions can be exercised. The relevant portion of the aforesaid judgment of the Supreme Court is as follows:

It is true that before passing the order the District Magistrate, Sub Divisional Magistrate or the Executive Magistrate gives a hearing to parties

except in cases of emergency when ex parte order can be made u/s 144(2) by him without notice to the person or persons against whom it is

directed but in which cases on an application made by any aggrieved person he has to give hearing to such person u/s 144(5) and thereupon he

may rescind or alter his earlier order. It is also true that such an order made by the Executive Magistrate is revisable u/s 397 of the Code because

under the Explanation to that section all Magistrates, whether Executive or Judicial or whether exercising appellate or original jurisdiction, are

deemed to be inferior courts for purposes of the revisional power of the High Court or Court of Session. But the fact that the parties and

particularly the aggrieved party are heard before such an order is made merely ensures fair play and observance of audi alteram partem rule which

are regarded as essential in the performance of any executive or administrative function and that further fact that a revision lies against the order of

the Executive Magistrate either to the Sessions Court or to the High Court removes the vice of arbitrariness, if any, pertaining to the Section. In

fact, in the three decisions of this Court which were relied upon by counsel for respondents 5 and 6 namely, Babulal Parate Vs. State of

Maharashtra and Others, ; State of Bihar Vs. Kamla Kant Misra and Others, ; Madhu Limaye Vs. Sub-Divisional Magistrate, Monghyr and

Others, where the constitutionality of Section 144 of the old Code was challenged on the ground that it amounted to unreasonable restriction on

the fundamental right of a citizen under Article 19(1) of the Constitution, the challenge was repelled by relying upon these aspects to be found in the

provisions. In our view, however, these aspects cannot make the order a judicial or quasi-judicial order and such an order issued u/s 144 of the

present Code will have to be regarded as an executive order passed in performance of an executive function where no lis as to any rights between

rival parties is adjudicated but merely an order for preserving public peace is made as such it will be amenable to writ jurisdiction under Article 32

of the Constitution. We would like to mention in this context that the power conferred upon Section 144 Crl.P.C., 1973 is comparable to the

power conferred on the Bombay Police u/s 37 of the Bombay Police Act, 1951. Both the provisions having been put on the statute-book to

achieve the objective of preservation of public peace and tranquillity and prevention of disorder and it has never been disputed that any order

passed u/s 37 of the Bombay Police Act is subject to writ jurisdiction of the High Court under Article 226 of the Constitution on the ground that it

has the effect of violating or infringing a fundamental right of a citizen. The nature of the power under both the provisions and the nature of function

performed under both being the same by parity of reasoning an order made u/s 144, Crl.P.C. 1973 must be held to be amenable to writ

jurisdiction either under Article 32 or under 226 of the Constitution if it violates or infringes any fundamental right. The contention raised by counsel

for respondents 5 and 6 therefore has to be rejected.

As already pointed out in a case where there is no violation of fundamental right, the appropriate remedy is to invoke the revisional jurisdiction of

the Court of Sessions or the High Court as the case may be.

As far as the issuance of mandamus to the Sub-Divisional Magistrate to dispose of the proceedings u/s 144, Crl.P.C. on or before 31.12.1996

is concerned it is not possible to agree with the contention of the learned counsel for the appellant that no such direction could have been issued. If

a court or an authority fails to discharge its function properly within a reasonable time, mandamus can be issued directing that authority or the Court

to perform its function and discharge the duties as required by law within a reasonable time. The same is the position in the instant case.

The other contention of the learned counsel for the appellant is that if a direction of a nature is complied with, Criminal O.P. filed by the

appellant before this Court for quashing the proceedings u/s 145, Crl.P.C. would become infructuous. We find no substance in this submission. If

that Criminal Original Petition becomes infructuous, it would be open to the petitioner/appellant to challenge the order that would be passed in the

proceeding u/s 145, Crl.P.C. Hence we see no reason to interfere with the order of the learned single Judge. This appeal is accordingly rejected.

C.M.P.No. 17699 of 1996 is also dismissed.