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S.S. Venkataramana Aiyar Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in43Ind.Cas.88
AppellantS.S. Venkataramana Aiyar
RespondentEmperor
Cases ReferredGovindachetti v. Perumalchetti
Excerpt:
.....to apply to the district magistrate to set aside the order of the sub-divisional magistrate. in the circumstances a very strong case would have to be made out to justify the interference of this court at this stage. the order, however, complained of seems to me to be on the face of it a legal order in accordance with section 144 of the code of criminal procedure, for i regret that i cannot agree with my learned brother's view that under section 144 of the code of criminal procedure it is necessary for a magistrate to record in his order his reasons for considering the occasion to be one of emergency. 11. i would, therefore, dismiss this petition, as the case for intervention at this stage is extraordinarily weak......passed in cases of emergency or when there is no time to serve notice. vide section 144 (2) of the code of criminal procedure. the order of the head assistant magistrate does not disclose the existence of such emergency or that there was not sufficient time to serve notice. the tahsildar himself in his letter of the 12th june recommended that before any orders were issued, evidence should be formally recorded; and the record does not, in our opinion, disclose any such emergency as called for an ex parte order. we, therefore, set aside the order of the head assistant magistrate.' if i may say so with respect, i entirely agree with this decision. in the present case, the petitioner is a high court vakil residing in erode itself and known well to the deputy magistrate, and hence it cannot.....
Judgment:
ORDER

Sadasiva Aiyar, J.

1. This is a petition for revision of the order of the Divisional Magistrate of Erode, dated 1st September 1917, passed under Section 144 of the Criminal Procedure Code prohibiting the petitioner, who is a High Court Vakil at Erode, from flying a a Home Rule flag and directing him to remove the said flag immediately. The order says, 'as this is a ease of emergency, this order is passed ex parte.' It was served on the petitioner at 9 P. M. on the 1st September 1917.

2. The order is defective Prima facie in the following matters: (1) it does not say where the flag was being flown by the petitioner, but this seems to be immaterial as the petitioner knew where it was being flown, that is, over his residence; (2) it does not set out what were the materials on which the Magistrate arrived at the opinion that the flying of the Home Rule flag was (a) 'causing annoyance to the public' and was (6) 'likely to cause disturbance of the public tranquillity,' and (c) 'also likely to lead to a riot or affray:' (3) it does not state that annoyance was being caused to any person or persons lawfully employed, the words 'lawfully employed' being found in Section 144, Clause 1; but this also seems to be an immaterial defect as annoyance to persons lawfully employed is only one of several alternative grounds mentioned in Section 144, Clause 1, and the prevention of a disturbance to the public tranquility or of a riot or affray is sufficient to support the order; (4,) it does not mention any facts to support the opinion that it was 'a case of emergency.' As I have dealt with the irregularities (1) and (3) while mentioning them, there remain only the irregularities (2) and (4) for consideration.

3. It was held by that very learned Judge Sir S. Subramania Aiyar in Chinnappudayan. In the matter of 3 M.L.T. 18, in respect of the analogous provisions in Section 145 of the Criminal Procedure Code, (which expressly require that the Magistrate should state the grounds of his being satisfied' while Section 144 requires only the statement of the 'material facts of the case') that the omission to state in the preliminary order the grounds on which the Magistrate was satisfied of the existence of a dispute likely to cause a breach of the peace was only an irregularity and did not affect the jurisdiction of the Magistrate and did not make his order void. It is, again, admitted in the petitioner's clerk's affidavit, paragraphs Nos. 10 and 11, that the Circle Inspector of Police and the Village Munsif of Erode submitted each a report to the Sub-Divisional Magistrate and that these reports formed the materials on which the ex parte order was issued. I think, there fore, this defect No. (2) also is not a sufficient ground for interference with the order.

4. The fourth and the remaining defect is that the order does not mention any facts to support the Magistrate's opinion that it was a case of emergency. The contention based on this defect deserves serious notice on account of its importance. In Sundram Chetti v. Queen 2 Weir 77 it was held as regards the corresponding Section 548 of the old Criminal Procedure Code of 1872 that although the law permits the issue of an order ex parte, it intends that ordinarily this course should not be pursued so that each party may have a fair hearing.' In Govindachetti v. Perumal Chetty 21 Ind. Cas. 381. I expressed the opinion (and it was concurred in by Sir L. Miller, J.) that ex parte orders should be passed only to meet temporary emergencies. In Mahamaddi Mollah v. Empress 2 C.W.N. 747 the following remarks occur: The Deputy Magistrate has submitted an explanation; but there is nothing on the record, or in the explanation to show that there was any such emergency in the matter which required him to take action under Sub-Section 2, Section 144, Criminal Procedure Code, as he has done. It is only in cases coming under sub Section 2 that the law declares that the order may be made ex parte; and, as we have already pointed out, there is nothing on the record, or in the explanation, to show that the matter was of such a nature that the circumstances-did not admit of the service in due time of the notice upon the person against whom the order is directed. The law provides that ordinarily in proceedings under Section 144, Criminal Procedure Code, notice should issue upon the person against whom the order was directed. It is only in cases coming under sub-Section 2 that service of notice is dispensed with. Under such circumstances we set aside the order, etc.' In Chandra Kanta Kanjilal v. Emperor 36 Ind. Cas. 144 the following observations occur at page 983 Page of 20 C.W. N.--Ed: 'The order as made under Section 144, Criminal Procedure Code, by the Sub-Divisional Officer, on 9th December 1915, ought never to have been made. A servant of the first party presented a petition to the Sub-Divisional Officer, in which he complained...that if the opposite party did certain acts, there would be a likelihood of a serious breach of the peace. The Magistrate took no evidence and had nothing before him in which to make the necessary record of the material facts of the case; but on that petition alone, he passed an injunction against the second party under Section 144, Criminal Procedure Code. This appears to us to be wholly irregular. The threat of a breach of the peace was from the first party and the Magistrate might well have on that petition said to the person who presented it that he would bind him down under Section 107. The proceedings were pushed through with great haste. The order is said to have, been served at 9 p.m. on that day.... We think that the whole proceedings were irregular. The Rule must be made absolute. The order under Section 141, Criminal Procedure Code, has expired, but it is set aside as being the foundation for the proceedings under Section 188, Indian Penal Code, which are also quashed.' I must here remark, as has been remarked in several cases [including Sundram Chetti v. Queen 2 Weir 77 and Govindachetti v. Perumal Chetty 21 Ind. Cas. 381that it is the duty of the Magistrate to support lawful acts as far as possible. The flying of a Home Rule flag is a perfectly legal act and if unreasonable people threatened to commit a breach of the peace, the Magistrate ought not to treat it as a case of emergency unless, through temporary circumstances, the Magistrate had no sufficient Police or other force at his command to prevent an immediate breach of the peace and unless he is unable to find out the person threatening to commit a breach of the peace or at least the leaders of such persons (if they are numerous) so as to bind them over to keep the peace. I am clearly of opinion that 'the material facts' to be set out under Section 141, Criminal Procedure Code, in a case like the present do include, when an ex parte order is purported to be passed, the circumstances showing why the Magistrate was temporarily unable to prevent a breach of the peace by intending peace-breakers. In Venkatroya Gownden v. Very Rev. N. Rondy (1910) M.W.N. 354, the judgment (of Munro and Abdur Rahim, JJ.), which is a short one, is as follows: 'The order of the Head Assistant Magistrate, dated the 14th May 1910, was passed ex parte. Such an order can only be passed in cases of emergency or when there is no time to serve notice. Vide Section 144 (2) of the Code of Criminal Procedure. The order of the Head Assistant Magistrate does not disclose the existence of such emergency or that there was not sufficient time to serve notice. The Tahsildar himself in his letter of the 12th June recommended that before any orders were issued, evidence should be formally recorded; and the record does not, in our opinion, disclose any such emergency as called for an ex parte order. We, therefore, set aside the order of the Head Assistant Magistrate.' If I may say so with respect, I entirely agree with this decision. In the present case, the petitioner is a High Court Vakil residing in Erode itself and known well to the Deputy Magistrate, and hence it cannot at all be said that the circumstances did not admit of the serving of a notice upon a person against whom the order is directed; and it seems to be further improbable, speaking prima facie, that the emergency of a riot or an affray could not brook a delay of even 12 hours between 9 P.M. on the 1st September when the order was served and 9 A. M. on the following day (even if it was a Sunday) when the Vakil might have been asked to show cause. To borrow the language of the judgment in Venkatroya Gownden v. Very Rev. N. Rondy 7 Ind. Cas. 343: (1910) M.W.N. 354 the record in this case, even if you take into consideration the Police Inspector's report (which is not mentioned in the order of the Deputy Magistrate), does not, in my opinion, disclose any such emergency as called for an ex parte order.

5. There is, however, this distinction between the case of Venkatroya Gownden v. Very Rev. N. Randy (1910) M.W.N. 354 (the printed papers in which were perused by me) and the present case, namely, that in that case, the Magistrate in his order neither mentioned the existence of an emergency nor 'that there was not sufficient time to serve notice', whereas in the present case the Magistrate mentions in his order the existence of one of the two alternative conditions justifying the ex parte order, namely, 'emergency.' I need not say that this Court, while it has got ample powers to interfere in revision with even orders under Section 144, Criminal Procedure Code, is naturally very loath to reject the opinion of the Magistrate responsible for the peace of his locality that there was an emergency which justified his ex parte order. But Magistrates also should, on their part, remember that there is a revisional authority over them and should indicate with reasonable fullness, when passing such ex parte orders, the materials on which they come to the conclusion that there was an emergency which justified their proceeding to pass orders ex parte affecting the liberty of a person before giving him an opportunity to show cause against such orders. Otherwise, the revisional authority finds almost nothing in the record to go upon and the aggrieved party is naturally tempted to attack the order on the ground that the vague mention of emergency is merely intended to bolster up an arbitrary exercise of magisterial authority.

6. I am free to state that I have, while considering this case, during two days past, felt often inclined to admit this petition on the ground that the material facts indicating the emergency are not set out in the order of the Deputy Magistrate. The omission is no doubt only an irregularity (though a grave one). Without calling for an explanation from the Magistrate, however, it is not possible for this Court to find that there could not have been any materials before him to justify his opinion that there was such an emergency.

7. But the order seems not to have beep looked upon as a grievance by the petitioner till the 3rd September 1917, because his own case (on his clerk's affidavit, paragraphs Nos. 14 and 15) is that several hours before the order was served on him at 9 p.m. (on the 1st September), he had on the morning of the 31st August itself removed the flag which he (the petitioner) had hoisted some weeks before that date and that be had so removed it in deference to the wishes of the Sub-Divisional Magistrate, who seems to have been moving till then on quite friendly terms with the petitioner. The order in short could not at all affect the petitioner as there was no flag of his flying then, which had to be removed under the order, the petitioner's case being that it was a new flag hoisted by his father on the evening of 3lst August 1917 which was the only flag flying on the 1st September 1917 and the Deputy Magistrate's order was based on a misconception of the existing facts, Thus, this petition has been tiled by the petitioner (according to his own case) to set aside an order which was wholly infruotuous when it was served on him, as it directed him to do a thing which he had already done and to take an order with a property which did not belong to him. In fact, it was admitted in the course of the arguments that the petition was filed for the indirect purpose of stopping other proceedings taken by the Divisional Magistrate who has issued notice to the petitioner to show cause why sanction should not be granted to prosecute him for having disobeyed the ex parte order now in question and that if these later proceedings had not been commenced on the 3rd September, the petitioner would not have thought of attacking the present order which (according to him) was based on an entire misconception of the Deputy Magistrate as to the person who had hoisted the flag then flying over the house.

8. It might be admitted that even the most eminent and conscientious Judges are liable (being only human) to have their judgments unconsciously biased or coloured by their peculiar political, social or religions views when questions involving subtle and far-reaching principles connected with religion, sociology or politics, though very remotely and indirectly, have to be decided by them. I might instance questions connected with the meaning of the provisions of the Workmen's Compensation Acts, or the liability under the law of conspiracy of members of trade unions or the legality of a society which has anti-Christian or antireligious objects. It might even be that in times of political excitement the lower ranks of political agitators and of the Polios might lose their heads and be guilty of quite improper behaviour, such as conspiracies to break meetings or to manufacture evidence against persons whose political opinions are supposed (rightly or wrongly) to be viewed with disfavour by high Executive Officers. But I agree with my learned brother (whose judgment I have had the advantage of perusing) that allegations against the honesty of the conduct and of the intentions of responsible officials like a District Magistrate or first class Deputy Magistrate ought not to be made in an affidavit without adequate and strong materials being indicated in the affidavit itself in support of such allegations. I, therefore, fully share in his surprise at some of the allegations made in the affidavit of the petitioner's clerk (see especially paragraphs 10, 11 and 16 of the affidavit), which are not based on the deponent's own knowledge but which, he says, he was informed of and believes to be true. The source of the information when such serious allegations attacking the honesty of a Magistrate are made ought to be mentioned and in the absence of such mention, the statements on information become almost valueless. Where executive and judicial functions are combined in the same officer, it might be (human nature being such as it is) that a Magistrate honestly mistakes the extent of his legal powers in his executive zeal [see Govindachetti v. Perumalchetti 21 Ind. Cas. 381, but this should not be made the basis of unjustifiable attacks on his intellectual or official honesty.

9. As I have said already, this is not a case which could be decided without our calling upon the Sub-Divisional Magistrate to state the reasons which led him to his opinion that it was a case of emergency and I was half inclined to call upon the Magistrate for a statement as Co how he considered it to be a case of emergency. But as pointed out by my learned brother, this Court rarely interferes in revision till other remedies open to a petitioner in the lower Courts have been resorted to successfully, and there is more than one such remedy which has not been availed of by the petitioner in this case. So, after anxious consideration, I think it better, having regard to the fact that the petitioner has really cot been aggrieved by the order itself and that we cannot presume without stronger materials before us that the Magistrate who passed the order has seriously lost his judicial balance, to leave it to the Sub-Divisional Magistrate himself to deal with the merits of his ex parte order, when such merits are discussed before him and have to be considered by him in connection with any other proceedings arising Out of that order which the petitioner might be advised to initiate or which the petitioner is or might be involved in. I am, therefore, glad that I am not obliged to dissent from the opinion of my learned brother that it is not necessary to exercise our revisional powers in this case, at least at this stage.

Phillips, J.

10. Petitioner has been served with an ex parte order under Section 144 of the Code of Criminal Procedure directing him to remove a flag called the Home Rule flag from his house, as its display was likely to cause a breach of the peace. The order purports to have been passed ex parte as the case was one of emergency. Petitioner now asks us to set aside that order in revision. The order being passed ex parte it was open to the petitioner to apply to the Sub-Divisional Magistrate to have it set aside, and if, as he contends, the order is really an illegal order, we must presume that the Sub-Divisional Magistrate, on being shown the law on the subject and the true facts of the case, would have acted according to law and would have canalled his order. Even if the Sub Divisional Magistrate failed to apply the law correctly, it is was open to petitioner to apply to the District Magistrate to set aside the order of the Sub-Divisional Magistrate. Instead of taking this course, which is allowed by law under Section 144 of the Code of Criminal Procedure, petitioner has come to ask us to interfere in revision, and he also alleges that it would have been futile to apply to the Sub-Divisional Magistrate and the District Magistrate, because they hold views which would prevent them from dealing with the case in a judicial spirit and according to law. This is a most serious allegation against the judiciary and is not in any way justified by the very voluminous and wordy affidavit before us nor have any facts been mentioned in support of this attack upon the honesty of two responsible Magistrates, and 1 am surprised that it should have been made at all without facts to support it. There being absolutely no ground shown for the insinuations made, petitioner should have applied in the first instance to the Local Magistrate before coming to this Court to apply for revision. In the circumstances a very strong case would have to be made out to justify the interference of this Court at this stage. The order, however, complained of seems to me to be on the face of it a legal order in accordance with Section 144 of the Code of Criminal Procedure, for I regret that I cannot agree with my learned brother's view that under Section 144 of the Code of Criminal Procedure it is necessary for a Magistrate to record in his order his reasons for considering the occasion to be one of emergency. No hardship is caused to petitioner by having to live for a short time without a flag flying above his house.

11. I would, therefore, dismiss this petition, as the case for intervention at this stage is extraordinarily weak.


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