PITCHAI Vs. MUNA MUNA CHENA MUHAMMAD ATHAM SAMMATTI

JUDGEMENT

(1.) This is an application to this Court to vacate the order, dated 19 April, 1932, in Cr. M.P. No. 270 of 1932 by which the order of the Sub-divisional Magistrate of Ramnad under Section 144 of the Criminal P. C. was suspended in its operation - the first ground taken is that this Court had no power to suspend the order. The argument adopted is that powers of revision are exercised under Section 435(1), Criminal Procedure Code, which only applies to suspension of execution of imprisonment or fine or under Section 439, Criminal Procedure Code. Mr. Jayarama Aiyar has taken me through various sections of the Code mentioned in Section 439. Secs.423, 426, 427, 428 and 338 none of which he argues applies to this case, and I agree. Now there are certainly sections of the Code such as Section 188 under which execution of orders passed therein can be suspended, but they do not fall under any of the sections mentioned in Section 439, Criminal Procedure Code. No doubt Section 520 specially provides for stay of execution under Secs.517, 518 and 519. Mr. Jayarama Aiyar argued that such orders as are positive and not negative would come under Section 426 and he even argues that a positive order under Section 144 would fall under it. That section begins with the words, "Pending any appeal by a convicted person". These words govern the whole section. It therefore follows in my opinion that where there is no appeal pending by a convicted person the section cannot come into force; and it cannot be invoked. It seems, therefore, obvious that since there are orders execution of which can be stayed by this Court which do not fall under Section 439 read with Section 426 they are either dealt with under Section 561-A in the exercise of its inherent powers or under Section 107 of the Government of India Act. Thus there is no section (apart from Section 561-A) in the Code of Criminal Procedure which enables the High Court to stay criminal proceedings. It is not correct to say that therefore any power of stay which cannot be found within the four corners of the Code cannot be exercised, if we assume, as Mr. Jayarama Aiyar does, that Section 561-A cannot be invoked. In this connection Chockalingam Ambalam V/s. Emperor (1927) M.W.N. 716 may be referred to. I have been shown no case where it has been held that this Court has no power of stay of execution of an order, positive or negative, passed under Section 144. Marudayya Thevar V/s. Shanmugasundara Thevar (1925) 49 M.L.J. 593 was quoted. This was under Section 145 and it related to the appointment of a Receiver. I am doubtful whether the analogy as to the power of the Court to appoint a Receiver under Section 145 can be carried so far as to prohibit the Court staying execution of an order under Section 144. If that reasoning is carried further, it will equally prevent the Court staying positive orders under Section "144, which Mr. Jayarama Aiyar at the end of his argument admitted the Court could do.

(2.) The second argument is that no revision petition lies to this Court as the parties could have gone to the District Magistrate under Section 144 who has power to rescind or alter an order under Section 144(4). It is argued that these powers of the District Magistrate are appellate powers and therefore under Section 439(5) no appeal having been made to him, no revision petition to this Court can be entertained. Several cases have been quoted on the analogy of the old Section 195(7) but I do not think they have any bearing on this case for the simple reason that that section did not empower the Court to revise or change an order passed by itself which Section 144(4) does, and all the cases quoted proceed on the footing that the appellate or revising Court is superior to the Court whose order is sought to be appealed against or revised. The peculiarity of Section 144(4) is that it enables the Magistrate who passed the order to rescind or alter it. This power therefore of a superior Magistrate when he proceeds to do the same thing must be similar in its essence. It appears tome, therefore, that nothing can be gathered from cases which discuss whether revisional and appellate powers are the same or different things. Here we are dealing with a peculiar section, namely, Section 144(4), conferring a jurisdiction upon a Magistrate which, whether even if it can be called appellate or revisional, cannot be so called in the ordinary sense of those words namely of a superior Court dealing with an inferior one. There is one direct decision on the point, and it is the only one which has been quoted to me, namely, Saturhan Das V/s. Makhan Das (1921) 72 I.C. 171 . It was there held that the jurisdiction conferred by Section 144(4) of the Code of Criminal Procedure upon a Magistrate to rescind or alter an order made under the section by himself or any Magistrate subordinate to him or by his predecessor in office is neither appellate nor revisional jurisdiction; it is a special jurisdiction conferred by a special provision of the statute. Therefore in my opinion this argument that a revision petition cannot be filed to this Court must be rejected. I should not, however, be understood as in any way encouraging direct applications to this Court, when there is some Magistrate who can alter or rescind the order, but this Criminal Revision Petition has already been admitted in this Court, and I am not prepared to hold that it could not be filed here.

(3.) On the merits of the present petition I propose to say very little because the main question as to whether the agreement between the present petitioner and the counter- petitioners is a lease or a licence is one which will more properly come up in deciding the criminal revision petition itself. But it seems to me perfectly clear that the view which the learned Magistrate took in passing the order was that this was an ordinary lease and that since the parties under the lease had to vacate as they did not pay their rent within the specified time the petitioner before him was entitled to have an order under Section 144 excluding the counter-petitioners before him from the site. A few sentences of the order may be quoted. The principal contention of the counter-petitioners is that the clause in the rajinama that the defaulters should forfeit the lease is not intended to operate but is only introduced in terrorem and that it is not valid in law even otherwise.