1. On April 27th, 1895, an order was issued by the Taluq Magistrate of Madurantakam, under Section 144 of the Criminal Procedure Code, forbidding the erection of a stone-cut Vadagalai namam over the entrance of an Odayavar shrine in a certain temple, on the ground that such erection would lead to a riot. The Magistrate took proceedings in the first place on the report of the Village Munsif, which was followed by a police report and a petition from various persons. Before passing the order, he took a deposition from the dharmakartha, Tirunarasimha Chari, and several others.
2. There is no question as to the jurisdiction of the Magistrate to pass the order, and under Section 435, Criminal Procedure Code, his proceedings are not subject to revision by the High Court. But after the issue of the order, viz., on May 15th, 1895, the Magistrate, under Section 476, Criminal Procedure Code, directed the prosecution of the trustee Tirunarasimha Chari for giving false evidence (Sections 181 and 193 of the Indian Penal Code), the alleged false evidence being that the trustee had sworn the namam was an old one, whereas in truth it was an entirely new one. The District Magistrate refused to interfere with this order, and the first question for determination is whether the deposition was taken by the Taluq Magistrate 'in the course of a judicial proceeding,' as, if not, the Magistrate had no jurisdiction to act under Section 476, Criminal Procedure Code.
3. Under the old Procedure Code X of 1872, similar orders for the prevention of local nuisances were expressly declared to be not judicial proceedings, (Sections 518, 520) and were therefore not revisable under Section 297. See Ramanuja Jeeyarsvami v. Ramanuja Jeeyar I.L.R. 3 Mad. 354. Section 144 of the present Code corresponds to Section 518, Act X of 1872, and though Section 520 was not re-enacted as a separate section in the corresponding chapter, its purport is repeated in the third Clause of Section 435 of the present Code. In making this provision the Legislature had no doubt in view the fact that there might be emergencies in which it was essential for the prompt preservation of the public peace to debar the interference of the High Court, but orders passed under Section 144, have only a temporary duration.
4. The difficulty arises from the variation in language between Section 297 of the old Code and Section 435 of the present Code. Under the old Code powers of revision were granted to the High Court in judicial proceedings only, and the enacting of Section 520 would seem to imply that, but for that section orders under Section 518 would be ' judicial proceedings,': Section 435 of the present Code enables the High Court to call for the record of 'any proceeding before any inferior Criminal Court,' and, therefore, orders under Section 144 would certainly be subject to revision, were it not for the proviso in the third Clause of the section. Under Section 4 of the present Code 'judicial proceeding' is defined to be 'any proceeding in the course of which evidence is or may be legally taken.' It seems to us impossible to deny that a Magistrate acting under Section 144 may legally take evidence before issuing an order. He may, it is true, act on information received or on his own knowledge, without taking evidence, but the proviso in the third Clause which in certain cases authorizes the Magistrate to pass an order ex-parte seems to contemplate that ordinarily an order under the section should not be made, without an opportunity being afforded to the person against whom it is proposed to make it, to show cause why it should not be passed. See In the matter of Harimohan Malo 1 B.L.R. A. Cr. 20 and Queen v. Ram Chandra Mookerjee 5 B.L.R. 131. This necessarily implies the power to take evidence before coming to a decision, though a Magistrate is empowered to act upon what is not legal evidence in cases of special urgency.
5. From this it would appear that both under the old Code and under the present Code these urgent orders were regarded as in their nature 'judicial proceedings,' the only difference being that, whereas under the old Code, Section 520, somewhat inaccurately declared them to be not judicial proceedings for the purpose of ousting the High Court's powers of revision under Section 297, the present Code equally bars the High Court's jurisdiction without making an illogical declaration.
6. For these reasons we come to the conclusion that a Magistrate, making an enquiry before issue of an order under Section 144, is acting in a stage of a judicial proceeding, and has therefore jurisdiction to take action under Section 476, if he is of opinion that false evidence has been given before him.
7. We are not prepared to hold that the Taluq Magistrate was bound to make any further preliminary enquiry, and as he had jurisdiction, we cannot set aside his complaint, nor will we now express any opinion as to the defence that may be raised at the trial.