Decided on September 24,1971



- (1.) These petitions raise the question whether without having recourse to the provisions of Section 144 (4) of the Cr. P, C the provisions under Sections 435 and 436 Cr. P. C can be resorted to. One Damarowthu Apparao filed a petition before the Taluk Magistrate, Chodavaram seeking action under Section 144 (4) Cr. P. C alleging that the disputed land situated in Kinthali Vallapuram bearing S No 357/1 and 358/2 was gifted to the Gram Panchayat on 28-8-70 by its owner Sri Anapagaddi Kannayya Panthulu who had purchased the land under registered sale deed dated 17-5-48, and the Gram Panchayat subsequently passed a resolution authorising the Zilla Parishad to construct a building for locating a family-plann. ing sub-centre and for this construction, the tender of the petitioner was accepted and as the petitioner was collecting meterial for the said construction on the plot, the two respondents proclaiming that they would not allow anybody to construct any building thereon, threatened the petitioner ; saying that they would do away with his life if he should proceed with the work, that as the work had to be completed immediately according to the terms of the contract and as there was every likelihood of disturbance of public tranquility and danger to his life and as the circumstances do not admit of the serving in the due time of a notice upon the respondents and as this was a case of emergency, immediate action should be taken under Section 144 12) Cr. P, C. After recording the sworn statement of the petitioner, without notice to the respondent, the Taluk Magistrate relying on the sale deed, gift deed and other documents filed, held that though there was a rough patta in favour of the respondents that patta appears to have been issued, on a false representation as already observed by him in the arevenue enquiry and it had been issued by mistake, that their title to the land is not only doubtful but shady, that they have no business to interfere with the construction of the building in question, that the documents produced by the petitioner viz., the sale deed, gift deed, work order etc. show that he was lawfully employed for construction of the family planning sub-centre building, that his rights as well as of the Gram Panchayat have to be protected and a speedy remedy is called for and in that view passed an order directing the respondents not to enter into the schedule land and not to interfere in any manner WITH the construction of the family planning sub-centre.
(2.) The 1st respondent before the Taluk Magistrate, thereupon Moved the Sessions Judge under Sections 435 and 438 Cr. P. C. and after enquiry the Sessions Judge has held that the Taluk Magistrate Has imported some of his personal knowledge as Tahsildar in the Revenue enquiries held by him into this case, that the observations made by him have been made without any record in the present file, that He appears to have been anxious to support the petitioners and merely because the work had to be completed expeditiously to avoid lapse of funds he cannot pass an order of this type, that he has not Considered the question of the actual possession of any party and there are no sufficient or justifiable grounds for passing that order and has recommended setting aside of that order, and this reference is Crl. R.C. 486/71. The petitioner before the Tahsildar has also filed Crl.R.C. 474/71 against the order of the Sessions Judge.
(3.) It is now contended that when Section 144(4) Cr. P. C. itself provides for a redress by way of an application to the same Magis'trate who passed an order, or to a superior Magistrate to rescind or alter the order passed the party cannot have recourse to the proceedings "under Sections 433 and 438 Cr. P. C. This contention is not tenable. No doubt under Section 144 Cr. P. C., any Magistrate may rescind or alter bis own order or any order passed by his predecessor or of any Magistrate subordinate to him. This provision has obviou. sly been made, as under Section 144 (2) Cr. P. C. an exparte order can be passed in case of an emergency or in case where the circumstances do not admit the serving in due time a notice to the person against whom the order is directed; This is a salutory provision, so that the party who has not been heard and who feels aggrieved can either approach the same Magistrate or a Magistrate to whom the Magistrate passing the order is a subordinate. But that does not mean that by reason of this provision the appellate or revisional jurisdictions of superior courts is taken away This is a special jurisdiction conferred by a special provision in the statute, to enable the parties to approach the Court for a speedy redress of their grievances The powers under Sections 435 and 438 Cr. P. C, are very wide, where- under the High Court or a Sessions Judge or a District Magistrate or Sub-Divisonal Magistrate may call for and examine the records of any proceedings of any inferior Court within its jurisdiction and examine the correctness, legality or propriety of that order and in the case of the Sessions Judge or District Magistrate has to refer the matter to the High Court making its recommendations if any. Therefore the provisions of Section 144 (4) Cr P. C. cannot take away this right and merely because the party has not approached the court which passed the order or a superior Magistrate under that provision it does not mean that the petition under Sections 435 and 438 Cr.P.C, ,to the District Magistrate is barred. This view has found favour in Saturham Das v. Mukhan Das, Putchai v Mr Atham and Sunkarsan Nath v Sachidananda Das. Therefore this contention that the proceedings under Sections 435 and 438 Cr. P. C. are barred by reason of the provisions of Section 144 (4) Cr. P. C. is not correct. On the merits of the case, much need not be said, as obviously the Taluk Magistrate was in error in importing into the case his knowledge as a Tahsildar and also adjudicating on the validity of the title to the land in dispute and passing an order merely because there was an urgency in the Funds sanctioned for the construction of the building being utilised within the financial year, as otherwise they would lapse. The order is patently erroneous and has to be set aside.;

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