Kuppuswami Ayyar, J.
1. This is a petition to revise the order of the District Magistrate of Tinnevelly in Cri. R.C. No. 2 of 1943 on his file setting aside the order of the Joint Magistrate of Shermadevi in L. Dis. No. 5305 of 1943 on his file and directing the complaint to be proceeded with. A complaint was filed against the petitioners before this Court by the Second Glass Magistrate of Radhapuram in the Court of the Second Class Magistrate, Nanguneri, for an Offence punishable Under Section 188, Penal Code. The complaint was presented Under Section 195, Criminal P.C., and the averment was that these petitioners were guilty of having disobeyed an order passed Under Section 144, Criminal P.C., in M.C. No. 2 of 1948 on the file of the Sub-Magistrate of Radhapuram. The Joint Magistrate of Shermadevi to whom appeals from the decisions of the Sub-Magistrate of Kadhapuram lie found that the Sub-Magistrate passed the order Under Section 144 without jurisdiction and it was therefore ab initio void Under Section 530(1), Criminal P.C. He also directed the complaint to be withdrawn. One Muthuswami Reddiar filed a criminal revision petition to revise the said order of the Joint Magistrate directing withdrawal of the complaint to the District Magistrate of Tinnevelly who allowed it.
2. It is urged before me that the District Magistrate had no jurisdiction to direct the complaint to be proceeded with. It is urged however for the respondents that the complaint being one relating to an offence mentioned in Section 195 (1)(a), Criminal P.C., it is a complaint by a public servant and that Under Section 195(5) the order of withdrawal must be considered to be one passed by the authority to which that public servant is subordinate and therefore it is purely an administrative order and that the order of the authority superior to the authority which passed the order must be considered to be an administrative act and therefore this petition to revise that order is not maintainable. But then it is clear from the order sought to be revised that it purported to be an order passed by the District Magistrate as a Court and the petition was treated as a revision petition. As a matter of fact, in Nagu Servai v. Emperor : AIR1934Mad473 the nature of a petition filed Under Section 195(5) had to be considered, and it was observed that the act of filing a complaint by the Magistrate was a judicial act and that an application to the District Magistrate to have the complaint withdrawn 'was asking the District Magistrate to exercise his judicial discretion.'
3. It is next urged that the District Magistrate had no jurisdiction Under Section 436 to set aside the order of the Joint Magistrate and that all that he could do was to send up the papers to this Court for orders Under Section 438 in case he considers the order to be incorrect. The order of the Joint Magistrate directing the withdrawal of the complaint cannot be said to be an order of discharge. Consequently, it will not be open to the District Magistrate to himself set it aside. Therefore, the next point for consideration is whether 'the order of the District Magistrate should be confirmed or set aside. As pointed out by the Joint Magistrate as well as by the Additional District Magistrate, the order passed Under Section 144 was ultra vires and without jurisdiction. It is also clear that the object of the Second Class Magistrate in having issued the order was not so much to prevent a breach of the peace as to preserve the evidence that might be required in a suit that may have to be filed by the ryots with regard to a tank and its embankment and channels. In these circumstances, it cannot said that the Joint Magistrate was wrong in having considered that this is not a fit case in which the parties ought to be prosecuted. I therefore set aside the order of the District Magistrate and restore the order of the Joint Magistrate.