M. Sadasivayya, J.
1. This reference Under Section 433 of the Code of Criminal Procedure by the District Magistrate of Coorg arises under the following circumstances :
In proceedings Under Section 109 of the Code of Criminal Procedure, the Personal Assistant to the Deputy Commissioner and the Executive First Class Magistrate, Coorg (hereinafter referred to as the Executive First Class Magistrate), had ordered Under Section 118 of the Criminal Procedure Code, the respondent to execute a bond in a sum of Rs. 5oo/- for good behaviour for a period of three months together with one surety for a like sum. The respondent having failed to give such security was committed to prison by the Executive First Class Magistrate for a period of three months.
The District Magistrate of Coorg has taken the view that by the reason of Government Order No. 1438-57-Cts. 18-56-4, D/- 29-5-1956, under which the scheme of separation of Judiciary from the Executive was introduced to Coorg, the Executive First Class Magistrate had no jurisdiction to try the case against the respondent, Under Section 109 of the Criminal Procedure Code. Consequently, he has made this reference Under Section 438 of the Criminal Procedure Code, recommending that the order of the Executive First Class Magistrate committing the respondent to prison be quashed. He has. also stated that as the period for which the respondent had been committed to prison, has expired, there is no necessity for fresh proceeding against the respondent.
2. Though served with notice, the respondent has not appeared before this Court. Sri G. Shankar Chetty the learned Additional Assistant Advocate-General who has appeared on behalf of the State has contended that in spite of the allocation of powers and functions under the Government Order above referred to, the Executive First Class Magistrate had the power under the Code of Criminal Procedure, to require security for good behaviour Under Section 109 and that this reference is liable to be rejected. For the reasons stated below, I am satisfied that this reference should be rejected.
3. It is no doubt true that in the Schedule (Part I) of the Annexure to the said Government Order, which deals with the allocation of power and functions, the powers and functions Under Sections 108 to 126-A of the Code of Criminal Procedure have been shown as having been allocated to Judicial Magistrates; according to the Scheme in the said Government Order, the powers Under Sections 109, 118 and 123 of the Criminal Procedure Code, have not been allocated to the Executive Magistrates. But, this Government Order allocating powers and functions as between Judicial and Executive Magistrates, cannot have the effect of taking away a power or a jurisdiction which a Magistrate has been given by the Code itself. Section 36 of the Criminal Procedure Code has vested the Magistrates mentioned therein, with the 'ordinary powers' specified in Schedule III. One of the ordinary powers of a Magistrate of the First Class as specified in Schedule III is the power to require security for good behaviour, Under Section 109 (vide item (5) under heading III in Schedule III).
In addition to the ordinary powers referred to in Section 36, Magistrates may be invested with additional powers by the State Government or the District Magistrate as the case may be Under Section 37 of the Criminal Procedure Code; Section 41 provides for the withdrawal of such of the powers as may have been conferred either by the State Government or by the District Magistrate. But the 'ordinary powers' which the Code has given Under Section 36 to Magistrates) cannot been, taken away by the use of Section 41., A similar view has-1 been taken by his Lordship Dixit, J., in. Kaluram v. Madhya Bharat State A.I.R. 1951 Madh Bha 67. While considering a similar Government Order which had been issued in the State of Andhra Pradesh, his Lordship Bhimasankaram J., has observed as follows, in a decision reported in V. Butchaiah Chowdary v. Venkata Subrahmanyam A.I.R. 1957 Andh Pra 247 :
The State Government cannot, under any provision of the Code, deprive a Magistrate of the ordinary powers conferred upon him ex-officio by the Statute. The result, therefore, is that while the Magistrates may be amenable to disciplinary action at the hands of the Government for disobedience of their instructions as embodied in the Government Order abovementioned, their jurisdiction to exercise the ordinary powers vested in them Under Section 36 of the Code is always there and can only be lost by deprivation of their office.
4. In the present case, the Executive First Class Magistrate had, by virtue of Section 36' of the Code, the power to require security for good behaviour Under Section 109. This power could not be taken away by the Government Notification; above referred to. Though the action of this Magistrate may not have been in accordance with the allocation of powers and functions under the said Government Order, it cannot be said that he had no jurisdiction to require security for good behaviour, Under Section 109 of the Criminal Procedure Code. The view of the learned District Magistrate that the Executive First Class Magistrate had no jurisdiction to take action Under Section 109 of the Criminal Procedure Code, is not correct. In the result, this reference, is rejected.