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Kunga and ors. Vs. Joseph Anthey and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Misc. Petn. Nos. 226 and 227 of 1960
Judge
Reported inAIR1961Ker35; 1961CriLJ263
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 561A
AppellantKunga and ors.
RespondentJoseph Anthey and ors.
Appellant Advocate V.R. Krishna Iyer and; V. Sivaraman Nair, Advs.
Respondent Advocate M. Bhaskara Menon and; M.K. Narayana Menon, Advs.
DispositionPetition dismissed
Cases ReferredKula Chandra Dutt v. Emperor
Excerpt:
- - it appears that the respondents filed a petition before the executive first class magistrate, cochin for issuing necessary orders to the police to render police protection so that there may not be any breach of the peace when he is constructing his compound wall the petitioners complain that the rights of the respondents are disputed and that there is no provision of law either in the cods of criminal procedure or in any other enactment empowering a magistrate to direct police to interfere in such matters......procedure code. it appears that the respondents filed a petition before the executive first class magistrate, cochin for issuing necessary orders to the police to render police protection so that there may not be any breach of the peace when he is constructing his compound wall the petitioners complain that the rights of the respondents are disputed and that there is no provision of law either in the cods of criminal procedure or in any other enactment empowering a magistrate to direct police to interfere in such matters. it is therefore contended that this court should interfere and quash the proceedings.2. section 561-a comes into play only when the order impugned, is passed by a court acting judicially. if the order is passed by the magistrate in his executive capacity and not.....
Judgment:
ORDER

P. Govinda Menon, J.

1. This is a petition under Section 561-A of the Criminal Procedure Code. It appears that the respondents filed a petition before the Executive First Class Magistrate, Cochin for issuing necessary orders to the police to render police protection so that there may not be any breach of the peace when he is constructing his compound wall The petitioners complain that the rights of the respondents are disputed and that there is no provision of law either in the Cods of Criminal Procedure or in any other enactment empowering a Magistrate to direct police to interfere in such matters. It is therefore contended that this court should interfere and quash the proceedings.

2. Section 561-A comes into play only when the order impugned, is passed by a court acting judicially. If the order is passed by the Magistrate in his executive capacity and not as a court, Section 561-A will have no application. A reading of the Section would show that the High Court will interfere if necessary when something contrary to law has been done by subordinate courts. Here in this case, the! Executive First Class Magistrate is the person primarily concerned with the law and order position in his division.

It is only to see that no breach of the peace occurred that the learned Executive First Class Magistrate issued instructions to the police. No cognizance has been taken by him in the strict sense of the term and no action has been taken by any 'court'. Reference may be made to the decision reported in Ahmad Din v. Rijha Singh, AIR 1930 All 652 where it was held:

'Section 561-A empowers the High Court to interfere if necessary when something contrary to law has been done by a subordinate court. It thus presupposes that there is an order of a court. But where an order is passed by a Magistrate in his executive capacity his order cannot be interfered under Section 561-A as that section has no application in such a case.'

To the same effect is the decision in Kula Chandra Dutt v. Emperor, AIR 1946 Pat 191. In these circumstances whether the option of the Executive First Class Magistrate., is proper, or improper,, it is clear that this court cannot treat it as an orderof 'a court' and no interference is therefore called for. The petition is dismissed.


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