L.S.MEHTA, J. - (1.) THIS is a revision petition filed by Shiv Dutt Sharma, challenging the order of the City Magistrate, Jaipur city, dated September 3, 1972, passed under Section 144, Cr. P.C. The petitioner is a student of S.M.S. Medical College, Jaipur. He is living in the Senior Boys' Hostel, Room No. 39, having deposited his Hostel fee from 1st July to 31st December,1972. The students of the Medical College submitted a charter of their demands to the Government for solving their unemployment problem. They also made a peaceful demonstration on August 16, 1972 outside the Rajasthan Legislative Assembly. In order to press their demand they wanted to meet the Health Minister, but when they failed to do so, they staged demonstration outside his residence in a peaceful manner for sometime, but the police force removed them. The State of Rajasthan, according to the petitioner, started unprecedented repressive measures to suppress their demand for employment. During the night intervening September 2 and 3, 1972, the petitioner was sleeping in the room of his hostel at Jaipur. The door of his room was got opened and when he came out he found several R.A.C. Jawans with lathis and 'Dandas' in their hands. They pounced upon the petitioner and other boys. They were taken out from their rooms. In the meantime Shri Tara Prakash Joshi, City Magistrate, Jaipur City, told the wardens of the hostel not to intervene. The students were then taken to the R.A.C. lines. Mr. Tara Prakash Joshi asked the petitioner to go home. After about 2 weeks the petitioner was released and an order under Section 144, Cr. P.C. was passed by Mr. Tara Prkash Joshi, City Magistrate, Jaipur City. The petitioner submits that this order is ultra -vires under Section 144, Cr. P.C. and that Section 144 of the Code has been misused by learned City Magistrate in getting the hostel vacated. The petitioner, therefore, prays that the impugned order be set aside.
(2.) I have heard Mr. G.M. Lodha for the petitioner and the Additional Advocate General on behalf of the State of Rajasthan. In this case the first point that has been raised on behalf of the petitioner is that orders passed under Section 144, Cr. P.C. are judicial orders and they are subject to judicial review by the High Court. As against this, learned Additional Advocate General has submitted that the High court should in a matter like this rarely interfere in revision under Section 439, Cr. P.C. The High Court should, counsel adds, be loath to reject the opinion of the Magistrate responsible for the maintenance of the peace of the particular area. In support of his contention he has cited Venkataramana v. Emperor AIR 1919 Mad 1004, wherein Sadasiva Aiyer J. has observed: The High Court would rarely interfere in revision with an order under Section 144, Criminal P.C. Learned Additional Advocate General further urged that the petitioner should have first approached the City Magistrate, Jaipur, or the District Magistrate, Jaipur, under Sub -s (4) of Section 144, Cr. P.C. These Magistrates have got ample power to rescind or alter the orders passed under Section 144, Cr. P.C. The Madras decision (supra) was given prior to the amendment of Section 144 of the Code by the Code of Criminal Procedure (Amendment) Act, 1923. There is a direct decision on the point reported in Saturhan Das v. Mukhan Das AIR 1921 Pat 468. It has been held therein that the jurisdiction conferred by Section 144(4), Cr. P.C. upon a Magistrate to rescind or alter an order made under the section by himself or by any Magistrate subordinate to him or by his predecessor -in -Office is neither the appellate, nor revisional jurisdiction. It is a special jurisdiction conferred by special provision of the statute. Therefore, the argument that the revision petition cannot be filed without first approaching the concerned Magistrate is not tenable. A reference in this connection is made to Pitchai v. Md. Khan AIR 1932 Mad 720, in which Vaish J. held that a revision petition against an order Section 144, Cr. P.C. can be filed to High Court though it should not ordinarily be so filed in the first instance. The matter also received the consideration of Lord Williams and McNair JJ., in Surendra Nath v. Gostha Behari AIR 1934 Cal 139 The relevant observation in that judgment runs as under: Where an order under Section 144(2) is passed ex -part ((SIC)) the proper remedy of the aggrieved party is to apply to District Magistrate under Section 144(4) to have the prohibitory order set aside; but where the Magistrate postpones the case and the matter has to be disposed of expeditiously, such party can go to High Court under this Section 439: The point in issue was also adjudicated by the distinguished Judge, Beaumont C J. in re. Ardeshir Phirozehaw Mursban AIR 1940 Bom 42. It has been categorically laid down in that case that the fact that the petitioner did not avail himself of the remedy under Section 144(4), Cr. P.C. is no ground for refusal to interfere in revision by the High Court. There is also a Full Bench decision of the Lahore High Court in Editor, Tribune v. Emperor AIR 1942 Lah 171. Therein Young C.J. speaking for the Court said: The opinion of a District Magistrate, expressed under Section 144, although entitled to great weight, is not absolute and cannot interfere with the right of the High Court under the revisional sections of the Criminal Procedure Code to interfere with the order or set it aside.... The right of the High Court to interfere with such orders has been recognised by all the High Courts in this country. ,
(3.) THUS , propriety of the order as well as its legality can be considered by the High Court in revision though in examining the propriety of an order the High Court undoubtedly must give due weight to the opinion of the concerned Magistrate, who is the man on the spot and responsible for the maintenance of public peace in the area. In support of this proposition I place reliance on a decision of their Lordships of the Supreme Court in Babulal Parate v. State of Maharashtra : 1961CriLJ16 wherein it has no doubt been said that it was open to the parties concerned to move the District Magistrate and apply for modification of the order by granting them exemption from the restriction placed by the order. But in this very judgment in head note C. it has been made clear; Again, though no appeal has been provided in the Code against the Magistrate's order under Section 144, the High Court has power under Section 435 read with Section 439 of the Code to entertain an application for the revision of such an order ;