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Madras High Court
Govinda Chetti And Ors. vs Perumal Chetti And Anr. on 1 September, 1913
Equivalent citations: 30 Ind Cas 453 a
Author: S Aiyar
Bench: Miller, S Aiyar


Sadasiva Aiyar, J.

1. In the absence of the Police Sub-Inspector’s report of the 22nd June 1913, on the basis of which the Salem Town Sub-Magistrate passed his order of the 27th June 1913, I cannot see my way to hold that the said order passed under Section 144 of the Criminal Procedure Code was an order passed without jurisdiction. The said report of the Sub-Inspector of Police is not part of the record sent to us and before we could send for it, the two months during which the order is to remain in force would expire and there would be no use in revising1 the order after it is spent. I would, therefore, dismiss this petition, but I do not think it inappropriate to make some observations with reference to the proceedings of the lower Courts.

2. The Sub-Magistrate’s proceedings of the 15th July 1913 lend some justification to the argument addressed to us by the petitioners’ learned Vakil that the Sub-Magistrate considered himself legally bound by the “District Magistrate’s order which prohibits the procession,” evidently in perpetuity. The Sub-Magistrate, while he ought to give due and very great respect to the advice of the District Magistrate, ought to have used his own judicial mind on the Sub-Inspector’s report and have come to his own conclusion-whether a temporary and emergent order under Section 144 ought to have been passed. The general instructions” of the District Magistrate are not legally binding on the Sub-Magistrate in particular cases. Again there is some force in the petitioners’ learned Vakil’s contention that the Magistracy at Salem are, under the shelter of Section 144 of the Criminal Procedure Code (which relates to the passing of provisional orders to tide over temporary emergencies and in cases where immedinate prevention or speedy remedy is desirable”), the Magistracy are under the shelter of that section trying to clutch at a much more extensive jurisdiction, namely, a jurisdition to prohibit the petitioners by a permanent injunction from taking processions throughout an indefinite future period along the streets of Salem. I have no doubt that under Section 15 of the Charter Act, we are entitled to prevent such indirect evasion by the Magistracy of the law as laid down in Section 144 see Remjit Singh v. Luchman Prasad 7 C.W.N. 140; Satish Chandra Roy v. Emperor 11 C.W.N. 79 at 80 : 4 Cr.L.J. 433; Gopi Mohun Mullich v. Taramomi Chowdhrani 5 C. 7 at p. 19 : 4 C.L.R. 309 and Queen-Empress v. Pndap Chunder Ghose 25 C. 852 : 2 C.W.N. 593 (the observations in which cases indicate that the arm of the law is long enough to prevent such evasion of the Code by arbitrary and successive renewals of orders passed under Section 144 and that the powers given to the High Court under Clause 10 of the Charter Act are sufficient to prevent such evasion).

3. The District Magistrate’s order of, the 23rd July 1913, refusing to set aside the Sub-Magistrate’s order of the 22nd June 1913, does not state that there was again a temporary emergency and a continuing or existing insufficiency of the Police force to protect the petitioners in exercise of their rights. Unless such a ground is expressly mentioned and is prima facie established in any future order passed in connection with this question, the presumption would, in my opinion, be very strong that the order was passed merely in order to evade the provisions of Section 144 and that the Magistracy are attempting to give themselves a much more extended jurisdiction than is covered by Section 144 of the Criminal Procedure Code.

4. With these observations I would dismiss this revision petition.

Miller, J.

5. I agree in the order proposed, and entirely concur in my learned colleague’s observations as to the attempt which, there seems reason to fear, the District Magistrate of Salem is making, to obtain a jurisdiction wider than that given him by Section 144 of the Code of Criminal Procedure.

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