1. The Sub Divisional Magistrate, Tanjore passed an order under Section 144 Criminal Procedure Code, prohibiting certain persons (respondents before us) from interference with the performance of a certain religious ceremony. Respondents are said to have disobeyed this order: and the Sub Divisional Magistrate thereupon Sectioned their prosecution for an offence under Section 188, Indian Penal Code. The Sessions Judge; purporting to act under Sub-section (6) of Section 195 revoked this Section.
2. We are now asked to revise his order: and the first ground taken is that, as the case falls under Clause (a) of Sub-section (1) of Section 195, the power of revocation lay with the District Magistrate, not with the Sessions Judge, and that the latter's order was without jurisdiction.
3. The question has to be decided with reference to the pro visions of Sub-sections (6) and (7) of Section 195. There is no doubt that, if the general principle of Sub-section (6) is applied, the proper authority to revoke the Section is the District Magistrate: vide Section 17(1) and (5), Criminal Procedure Code. But it is contended that the Sub Divisional Magistrate must be regarded as a 'Court,'when issuing an order under Section 144 and (consequentially) when Sectioning prosecution for breach of the same, and that it follows that the special test laid down in Sub-section (7) for determining the subordination of 'Courts'in this connection applies. If so, the proper authority to revoke is undeniably the Sessions Judge.
4. It is, we think, reasonable to hold that if the order under Section 144 is passed by a person acting as a Court, that person must also be treated as a court, when he Sections prosecution for disobedience of the same. It is also possible that the 'Public servant'referred to in Sections 172 to 188, Indian Penal Code, might in certain circumstances be a 'Court '. Whether in the latter event, Sub-section (7) should apply, or whether the application of that Sub-section is confined to cases falling under Clauses (b) and (c) of Sub-section (1) seems to us doubt-ful. But we are inclined to hold that a Magistrate passing an order under Section 144, Criminal Procedure Code, does so only as a 'public servant 'and not as a 'Court'. We are aware that an opposite view has been taken by a Bench of this Court in Arunachallam Pillai v. Ponnuswami 35 M.L.J. 454. We have carefully considered the judgment in that case which appears to proceed on the footing that an order under Section 144 is an order of a Court. Napier, J. says such orders 'have always been treated as judicial orders 'which the learned Judge appears to treat as identical with orders of Court. With all respect we do not think this view is correct. A Full Bench of this Court in Sundaram v. The Queen : Ponnuswami v. The Queen I.L.R. 6 Mad. 203, a leading case on orders under this section, has specifically laid down that 'it should always be borne in mind that orders under Section 518 of the Code of Criminal Procedure of 1872 'corresponding with Section 144 of the present Code, are not judicial proceedings 'and the same view has been taken by a Full Bench of the Calcutta High Court in Abbas Ail Chondhry v. Illim Meah 14 W.R. (Cr) 46. That section has been elaborated, and its operation in some ways restricted in the corresponding sections of subsequent codes. But we find nothing in the changes of Section 62 of the Code of 1861 which would render less applicable the considered opinions of the learned Judges in that case. This view seems to be supported by a consideration of Section 144. This section merely empowers certain Magistrates to pass temporary orders in urgent cases. These orders need not be based on any record outside the Magistrate's own knowledge or observation; and it is not even necessary that the party against whom it. is directed should first be given a chance of being heard. To take a simple instance. A Magistrate observing with his own eyes (without complaint or report) that certain property was in a condition imminently dangerous to human life, might immediately and without waiting to hear what any human being had to say, issue an order under this section: and provided his order was in writing, set out the material facts and was properly served, it would be a valid order, disobedience to which would be an offence under Section 188, Indian Penal Code. The remedy of a party injuriously affected is to get it set aside under Sub-section (4). Can such an order be treated as an order of a Court? or, to use another phrase, a 'judicial order '? If not, is its nature altered because the Magistrate may hold an enquiry, and record and consider evidence before issuing it
5. Orders under Section 145, Criminal Procedure Code, which must be preceded by an enquiry in the presence of parties, who are entitled to adduce evidence, stand on a different footing though orders under both sections are withdrawn from the ordinary revisional jurisdiction of this Court (vide Section 435(3), Criminal Procedure Code.)
6. In our opinion, a Magistrate passing an order under Section 144, Criminal Procedure Code, is not acting as a 'Court' and Sub-section (7) of Section 195 is inapplicable to such a case;
7. In considering the intention of the Legislature, it may not be out of place to refer to the improbability that, while securing, orders under Section 144 from interference except by the successor of the Magistrate passing them or by some superior Magistrate (vide Clause 4 quoted above), the Sessions Judge should have been given the power to render the order practically nugatory by declining to allow a prosecution for disobedience to it.
8. We would also refer to the Judgment of a Bench of this Court reported in 11 Weir 155, in which the learned Judges took a more extreme view than that we have expressed above, and held in effect, that all Section orders passed Under Clause (a) of Sub-section (1) must be taken to be passed by a public servant who was not acting as a Court.
9. In our opinion the order of the Sessions Judge must be held to be without jurisdiction, and accordingly set aside.