Desai, J. - (1.) THIS is an application in revision against an order of a Sub -Divisional Magistrate, confirmed by the Sessions Judge, Orai, directing the applicants Under Section 247(1) of the U.P. Municipalities Act to stop using their houses for habitual prostitution. The revision application has been filed Under Sections 435 and 439 of the Code of Criminal Procedure. When it was put up for disposal before our brother James, a preliminary objection was raised on behalf of the Municipal Board that it was not maintainable. The contention of the Board was that an order passed by a Sub -Divisional Magistrate Under Section 247(1) of the Municipalities Act can not be revised by the High Court Under Section 439, Code of Criminal Procedure.
(2.) THE High Court is authorised by Section 435(1) of the Code to "call for and examine the record of any proceeding before any inferior criminal court''. Section 439 lays down that in the case of any proceeding the record of which has been called for by itself or which has been reported for orders, the High Court may exercise any of the powers conferred on a court of appeal by Sections 423 etc. Section 247(1) of the U.P. Municipalities Act is to the effect that "when a Magistrate of the first class receives information" that a house in the vicinity of a place of worship etc. is used as a brothel or for the purpose of habitual prostitution, "he may summon the owner, tenant...to appear before him either in person or by agent; and if satisfied that the house is used as described" above may order such owner, tenant etc. to discontinue such use. Such action can be taken either on a complaint of the Municipal Board or of three or more persons residing in the immediate vicinity or with the sanction or by the order of the District Magistrate. Section 247(2) lays down that if the person against whom the above order has been passed fails to comply with it within the time allowed, "the Magistrate may impose on him a fine". In Madho Das v. Rex, 1949 A.W.R. (H.C.) 475 it was held by Seth J. that an order passed Under Section 310(2) of the U.P. Municipalities Act by a Magistrate directing a person to vacate a house is not an order passed in a proceeding of a criminal court and cannot be revised by the High Court Under Section 439 of the Code. An order passed by a Magistrate Under Section 247(1) is analogous to an order passed by a Magistrate Under Section 310(2) and there is a good ground for holding that if one order is passed by a Magistrate as a criminal court, the other also is. Therefore, on the analogy of the decision in the above case an order passed Under Section 247(1) is not an order passed in a proceeding in a criminal court Our brother James, however, doubled the correctness of the decision of Seth, J. and, therefore, has referred to us the following two questions: (1) What is a "Criminal Court"? (2) Whether a Magistrate who passes an order Under Section 247(1) or Section 340(2) of the Municipalities Act does so as a "criminal court"? The question in the present case is simply whether an order passed Under Section 247(1) is an order passed in a proceeding before any inferior criminal court and with great respect to our brother we shall answer only that question. Anything we say about an order passed Under Section (sic)(2) would be simply obiter and not bind any court. We may also be excused for not entering into a discussion as to what is a criminal court; what we say on the question whether a Magistrate passing an order Under Section 247(1) acts as a criminal court will be a decision in the case, but what we say on the question whether a Magistrate passing any other order does so as a criminal court will be obiter.
(3.) IN order to understand what is meant by a "proceeding before any inferior criminal court" it is necessary to understand the scheme of the Code of Criminal Procedure. The Code is not to affect "any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force" (vide Section 1(2)). The Code defines "judicial proceeding" (to mean any proceeding in the course of which evidence is or may be legally taken on oath), but not "proceeding." All offences under the I.P.C. must be investigated, inquired into and tried according to the provision's of the Code; all offences under any other law also must be investigated etc. according to the same provisions but subject to any enactment regulating the manner or place of investigating etc. or otherwise dealing with such offences (vide Section 5). Thus the Code lays down the procedure to be followed in every investigation, inquiry into, or trial for, every offence, whether under the I.P.C. or under any other law. The Code makes provisions for not only investigation, inquiry into, or trial for, offences but also inquiries into certain specific matters. The procedure laid down for inquiring into the specific matters naturally cannot be applied to inquiring into other matters and that explains why there is no general provision relating to inquiries not connected with trials. An inquiry not connected with a trial and not provided for in the Code cannot possibly be governed by any provision of the Code; the law regarding the procedure to be followed in such an inquiry must be found in the enactment conferring jurisdiction to hold the inquiry, besides the High Courts and the courts constituted under any other law there are to be five classes of criminal courts, one being of Magistrates of the first class (vide Section 6). In every district Government must appoint a Magistrate of the first class to be known as the District Magistrate (vide Section 10). Besides the District Magistrate Government may appoint Magistrates of the first class in any district (vide Section 12). Any Magistrate of the first class may be placed in charge of a sub -division by Government; he will be known as the Sub -Divisional Magistrate (vide Section 13). All Magistrate appointed Under Sections 12 and 13 and all Special and Honorary Magistrates are to be subordinate to the District Magistrate Under Section 17. Neither the Magistrates nor the District Magistrate are to be subordinate to the Sessions Judge except to the extent and in the manner expressly provided in the Code. The powers that are conferred upon the Magistrates are all mentioned in the several sections of the Code and are collected together in the IIIrd Schedule. The powers that are conferred upon the Magistrates by other Acts, such as the U.P. Municipalities Act, are not mentioned anywhere in the Code. Among the powers which are conferred upon the first class Magistrates or the District Magistrate are the powers to appoint a village head -man (Under Section 45(3), to arrest a person who commits a crime in the presence of the Magistrate (Under Section 64), to prohibit repetition or continuance of a public nuisance (Under Section 143), to pass orders to prevent danger to human life, health or safety, or a disturbance of the public tranquility, or a riot (Under Section 144) and to appoint a public prosecutor for any case (Under Section 492). Among the proceedings other than trials for offences and investigations and inquiries in connection with trials, for which the Code provides are those Under Section 112 etc. for demanding security to keep the peace or to be of good behaviour, Under Section 133 for removal of public nuisance, Under Section 145 for settling disputes regarding immovable property and likely to cause a breach of the peace, Under Section 464 etc. for inquiring into lunacy, Under Section 476 for inquiring into offences referred to in Section 195(1)(b) and (c), Under Section 480 for contempt committed in view or presence of the court and Under Section 488 for ordering a person to make a monthly allowance for the maintenance of his wife and children. There is to be no appeal from any judgment or orders of a criminal court except as provided for by the Code (vide Section 404). The Code provides for appeals from convictions and acquittals in regular trials and from orders passed in several proceedings not connected with a trial for an offence. The powers of an appellate court are described in Section 423. The High Court and Sessions Judges and District Magistrates are empowered by Section 435 to call for records of "any proceeding before any inferior criminal court" for the purpose of satisfying themselves as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior court; the orders that can be passed by the High Court on examination of the records and proceedings are laid down in Section 439. The High Court is precluded from exercising its revisional jurisdiction in a case in which an appeal lies but no appeal has been brought (see Section 439(5)).;