Vedappan Servai and Others vs M. Periannan Servai and Others

Reilly, J.—This is a revision petition filed against the order of the Taluk First Class Magistrate of Tiruppathur, dated 12th April, 1928 u/s

144 of the Criminal Procedure Code. A preliminary objection is taken by the learned vakil for the respondent that this petition does not lie. He

argues that the High Court acting u/s 435 of the Criminal Procedure Code can call for and examine the record of any proceeding only before any

inferior Criminal Court and that, in the present case, the order of the Magistrate acting u/s 144 is not the order of a Court. In support of this

argument he relies on the case reported in Nataraja Pillai Vs. Rangasami Pillai and Others, which was a judgment of Ayling, J. and myself. That

decision was passed prior to the amendment of Section 435 by the omission of Clause (3). It is true that Mr. Ranganadha Aiyar in his Criminal

Procedure Code expresses the opinion that the decision in Nataraja Pillai Vs. Rangasami Pillai and Others, is no longer law on account of the

amendment, but the. correctness of this opinion is questioned by the learned vakil for the respondent and I have to consider the point.

It is true that, so far as Section 145 of the Code is concerned, the omission of Clause (3) of Section 435 permits a revision to the High Court.

But it is clear that, but for Clause (3), an order u/s 145 is an order by a Court operating between the two contending parties. The words ""to attend

his Court in persoa"" in Section 145 clearly show that the Magistrate acting u/s 145 is a Court; but the old Clause (3) of Section 435 Laid down

that it is not a proceeding within the meaning of Section 435. Now that the clause is omitted the section certainly operates.

Now, are the consequences exactly the same in the case of Section 144? At first sight one may think it is so; but 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. Dr.

Swaminathan, appearing for the petitioner, argues that the decision in Nataraja Pillai Vs. Rangasami Pillai and Others, purports to follow the Full

Bench decision in Sundram v. The Queen ILR (1883) M. 203 and another Full Bench decision in Abbas Ali Chozvdhry v. Illim Meah (1870) 14

W.R. 46, that the Madras case was decided on the Code of 1872 and the Calcutta case was on the Code of 1861. Section 518 of the Code of

1872 corresponds to Section 144 of the present Code and Section 520 of that Code corresponds to Clause (3) of Section 435 and he argues that

Section 520 was not referred to in Ponnuszmmi v. The Queen ILR (1883) M. 203 and now that Section 435 (3) is omitted the decision does not

apply; but it seems to me that Ayling, J. and myself carefully considered the fact that those decisions were on the earlier Codes and we observed:

We find nothing in the changes which would render less applicable the considered opinions of the learned Judges in that case.

I am not convinced by this argument of Dr. Swaminathan.

Another argument urged by him is that, u/s 6 of the Code, the Criminal Courts in British India are divided into five groups and the 3rd, 4th and

5th groups are Magistrates of the first, second and third classes, but this does not mean that a Magistrate is always a Court whatever he is doing.

The section only means that among the Criminal Courts in British India are Magistrates but this does not necessarily mean that the Magistrates are

always Courts. It can only mean that when they act judicially they are Criminal Courts. Section 6 is not inconsistent with the idea that Magistrates

may sometimes act in executive and administrative capacity and not as a Court. It is unnecessary to refer to cases prior to Nataraja Pillai Vs.

Rangasami Pillai and Others, The decision of the Privy Council in (1912) L.R. 39 I.A. 163 (Privy Council) does not help the petitioner. It only

shows 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 does not conclude the matter as to Section 144. Some of the decisions brought to my notice are decisions

in which no objection was raised and the point was not considered and, therefore, they are of no value. A decision of the Patna High Court

Dhanraj Bhagat v. Bharat Narain Singh 84 Ind.Cas. 324 is also relied on. There also this point has not been considered, but I am not able to

follow the reasoning of that judgment. It is said that the final order u/s 144 was passed without any preliminary notice to the petitioner. No

preliminary notice is necessary. The only argument that suggests itself to me against the view I am now taking is this : cases occasionally arise in

which the powers u/s 144 are abused by Magistrates. Sometimes orders are passed u/s 144 repeatedly, that is, as each order expires by the lapse

of two months a further order is made for a like period and so on. It has been observed that such a procedure is an abuse of powers given under

the Code and ought to be set aside. The question arises how is an order to be set aside where it is an abuse of the power conferred by the Code. I

can only say that probably in such cases the power u/s 107 of the Government of India Act will have to be invoked. Anyhow I do not see enough

reasons to doubt the correctness of the decision in Nataraja Pillai Vs. Rangasami Pillai and Others, and until doubt is thrown upon it by more

authoritative decision, I am bound to follow it. I hold that no revision lies in this case and the revision petition is dismissed.