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Vedappan Servai and ors. Vs. M. Periannan Servai and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1928Mad1108; 113Ind.Cas.279; (1928)55MLJ621
AppellantVedappan Servai and ors.
RespondentM. Periannan Servai and ors.
Cases ReferredNataraja Pillai v. Rangaswami Pillai
Excerpt:
- - the words 'to attend his court in persoa' in section 145 clearly show that the magistrate acting under section 145 is a court; sometimes orders are passed under section 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......this argument of dr. swaminathan.5. another argument urged by him is that, under section 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 v. rangaswatni pillai.....
Judgment:
ORDER

Reilly, J.

1. This is a revision petition filed against the order of the Taluk First Class Magistrate of Tiruppathur, dated 12th April, 1928 under Section 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 under Section 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 under Section 144 is not the order of a Court. In support of this argument he relies on the case reported in Nataraya Pillai v. Rangaswami Pillai : (1923)44MLJ328 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 v. Raxngaszmmi Pillai : (1923)44MLJ328 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.

2. 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 under Section 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 under Section 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.

3. 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 Natwaja Pillai v. Rangaszuami Pillai : (1923)44MLJ328 purports to follow the Full Bench decision in Sundram v. The Queen I.L.R. (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 I.L.R. (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.

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

5. Another argument urged by him is that, under Section 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 v. Rangaswatni Pillai : (1923)44MLJ328 The decision of the Privy Council in Clarke v. Brojendra Kishore Roy Chowtdhry 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 under Section 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 under Section 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 under Section 144 are abused by Magistrates. Sometimes orders are passed under Section 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 under Section 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 v. Rangaswami Pillai : (1923)44MLJ328 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.


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