KUNGA Vs. JOSEPH ANTHEY

JUDGEMENT

(1.) This is a petition under S.561-A of the Criminal Procedure Code. It appears that the respondents filed a petition before the Executive First Class Magistrate, Cochin for issuing necessary orders to the police to render police protection so that there may not be any breach of the peace when he is constructing his compound wall. The petitioners complain that the rights of the respondents are disputed and that there is no provision of law either in the Code of Criminal Procedure or in any other enactment empowering a Magistrate to direct police to interfere in such matters. It is therefore contended that this court should interfere and quash the proceedings.

(2.) S.561-A comes into play only when the order impugned is passed by a court acting judicially. If the order is passed by the Magistrate in his executive capacity and not as a court, S.561-A will have no application. A reading of the Section would show that the High Court will interfere if necessary when something contrary to law has been done by subordinate Courts. Here in this case, the Executive First Class Magistrate is the person primarily concerned with the law and order position in his division. It is only to see that no breach of the peace occurred that the learned Executive First Class Magistrate issued instructions to the police. No cognizance has been taken by him in the strict sense of the term and no action has been taken by any court. Reference may be made to the decision reported in Ahamad Din v. Rijha Singh (AIR 1950 All. 652) where it was held: