BONDALAPATI THATAYYA Vs. GOLLAPUDI BASAVAYYA AND OTHERS;
LAWS(MAD)-1953-3-37
HIGH COURT OF MADRAS
Decided on March 26,1953

Bondalapati Thatayya Appellant
VERSUS
Gollapudi Basavayya Respondents

JUDGEMENT

SOMASUNDARAM, J. - (1.) THE above two petitions arise out of an order passed by the Addil. First Class Magistrate Masulipatam, under Section 144, Criminal Procedure Code On a petition filed on 2.7.1952 by one Bondalapati Thatayya against one Gollapudi Basavayya and 13 others an order was passed under Section 144, Clause (2), Criminal P C. by the Additional First Class Magistrate on 7.7.1952. Before 7.7.1952 the Additional First Class Magistrate called for a report from the police on the petition filed by the said Thatayya. Before the report was sent, the Court was again moved by the said Thatayya for an emergent ex parte order. It was then the ex parte order was passed on 7.7.1952 restraining the respondents in that petition, who are also respondents here (in Cr. R. C. No. 195 of 1953; from interfering with the bodi through which the petitioners were said to have been taking water to their lands. The respondents thereupon presented a petition to rescind that order on 17.7.1952. While that petition was pending Thatayya reported to the Station House Officer on 21.7.1952 that the order under Section 144, Criminal Procedure Code has been violated by the respondents by completely obliterating the entire bodi. On 23.7.1952 the said Thatayya filed a petition before the Additional First Class Magistrate making the same allegations as in the petition to the police and requesting the Court to take action for the disobedience of the order. On a report by the police on 25.7.1952 that the order has been disobeyed, a complaint was filed on 7.8.1952 by the Additional First Class Magistrate before the Stationary Sub Magistrate, Avandgadda for an offence under Section 188, Penal Code. This case was numbered as C. C. No. 681 of 1952. The respondents thereupon preferred a petition on 25.8.1952 before the Additional District Magistrate for withdrawal of the complaint. The Additional District Magistrate withdrew the complaint and it is against that order Cr. R. C. No. 195 of 1953 has been filed. The order by the Additional District Magistrate was passed on 9.9.1952.
(2.) WHILE the petition for withdrawal of the complaint before the Additional District Magistrate was pending the Circle Inspector of Police registered a case against these respondents for offences under Sections 143, 186 and 430, Penal Code, alleging that these respondents have formed themselves into an unlawful assembly, and obstructed a public servant, to wit a police constable, and caused resistance to him, and also stated that they caused diminution of supply of water. This according to the charge -sheet, happened on 28.8.1952. The charge -sheet was filed on 27.11.1952 in C. C. No. 1006 of 1952 in Stationary Sub Magistrate's Court, Divi. The accused therein filed a petition stating that the Court could not proceed with the case and the petition was dismissed and, it is against the order Cr. R. C No. 208 of 1953 has been filed.
(3.) I will take up first Cr. R. C. No. 195 of 1953. Two points are raised in the above revision. The first is that the Additional First Class Magistrate, Masulipatam, when he passed an order under Section 144, Criminal Procedure Code did so as a Court and the complaint filed by him for the offence under Section 188, Penal Code is by a public servant acting as a Court and the only authority that could withdraw the complaint is the authority to whom an appeal ordinarily lies from the Court of the Additional First Class Magistrate; that is to say, the only authority that could withdraw the complaint is the Sessions Judge of Masulipatam. The second point is, that even if it is held that the Additional First Class Magistrate, Masulipatam was not acting as a Court, still the authority who could withdraw the complaint is the District Magistrate, and not the Additional District Magistrate, as the Additional First Class Magistrate is subordinate only to the District Magistrate and not to the Additional District Magistrate. In support of his contention that the Additional First Class Magistrate was acting as a Court, when he passed an order under Section 144, Criminal Procedure Code the learned advocate Mr. Veerabadrayya relied on - 'Arunachalam Pillai v. Ponnuswami Pillai', AIR 1919 Madras 610 , a decision of a Division Bench of this Court. In that case the Bench has held that the order under Section 144, Criminal Procedure Code is a judicial and not an administrative order, and that the Magistrate was acting as a Court. In - 'Nataraja Pillai v. Rangaswami Pillai', AIR 1923 Madras 473 , another Bench of this Court has held following the Full Bench ruling of this Court in - 'Sundaram v. The Queen', 6 Mad 203 (FB) (C), that a Magistrate in passing an order under Section 144, Criminal Procedure Code is not acting as a Court and that the order is passed only as a public servant and not as a Court. They referred to - 'AIR 1919 Madras 610 ', and they differed from that ruling, and they pointed out that the previous decision of this Court in - '6 Mad 203 (FB) (C) is a decision by a Full Bench of this Court in which it has been held that the proceedings under Section 144 (same as Section 518 of 1872 Code) are not judicial proceedings. The decision of the Full Bench in - '6 Mad 203 (FB) (C)', was under the Code of 1872. Section 518 of the Code of 1872 corresponds to Section 144 of the present Code. Section 435 of the present Criminal Procedure Code corresponds to Sections 294, 295 and 520 of the Code of 1872. In the Codes of 1872, 1882 and finally of 1898, there was a provision in Section 435 that the orders under Section 144 and proceedings under Chap. 12 and Section 176 are not proceedings within the meaning of Section 435 (Vide Clause 3 of Act 1898 prior to its amendment in 1923). Section 435, Criminal Procedure Code provides for the calling for an examination of the records of any proceedings before any inferior Criminal Court. Section 435(2) (before the amendment of 1923) makes it quite clear that the proceedings before the Magistrate under Section 144 are not judicial proceedings and the order is not liable to be revised by the High Court in its revisional jurisdiction. Neither the decision in - 'AIR 1923 Madras 473 nor the decision in - 'AIR 1919 Madras 610 ', refers to this. I may say that the decision in - 'AIR 1923 Madras 473 ', which was given prior to the amendment of 1923 was good law then, and the decision in - 'AIR 1919 Madras 610 ', was not good law then. But now that Clause (3) has been repealed and it is not disputed that the orders under Section 144 are subject to the revisional jurisdiction of the High Court, it seems to me the reasoning in - 'AIR 1919 Madras 610 '; applies to orders now passed under Section 144 and - ' AIR 1923 Madras 473 ' cannot be held to be good law now. In my opinion, these proceedings are judicial proceedings, and it is reasonable as pointed out in - 'AIR 1923 Madras 473 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 has sanctioned the prosecution for the disobedience of the same". This later decision in - 'AIR 1923 Madras 473 ' is an authority for holding that if the order under Section 144 is passed by an authority, it must be treated as a Court when it sanctions prosecutions also. Coming to a later decision in - 'Nagu Servai v. Emperor', AIR 1934 Madras 473 Bardswell, J., sitting as a single Judge without noticing the decision in - 'AIR 1923 Madras 473 ' follows - 'AIR 1919 Madras 610 ' and holds that the filing of the complaint by the joint Magistrate for disobeying the orders under Section 145, Criminal Procedure Code was a judicial act. In this decision also there is no reference to the repeal of Clause (3) of Section 435, Criminal Procedure Code In - 'Vijayaranga Reddiar v. Muthuswami', AIR 1945 Madras 53 there was an order under Section 144 promulgated by the Sub Magistrate, and for disobedience of the same a complaint was filed by him under Section 183, Penal Code. There, Kuppuswami Aiyar, J., refers to the decision in - 'AIR 1934 Madras 473 ' and comes to the conclusion that the act of filing a complaint by the Magistrate was a judicial act. It is, therefore, clear from the decisions cited above and from the repeal of Clause (3) of Section 435, that the order was not only judicial, but that he must be acting as a Court.;


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