KOSHI VARGHESE Vs. STATE

JUDGEMENT

(1.) THE first counter petitioner in Cr. M. P. No. 849 of 1951 of the Ponkunnam Stationary First Class Magistrate's Court is the revision petitioner. The petitioner in that case moved for action being taken under Section 145, Criminal P. C. in respect of a property and the Police reported to the Magistrate that a dispute likely to cause a breach of the peace existed and that it was necessary to take action under the section. The learned Magistrate, however, held that there was no justification for action being taken under Section 145 since the matter in dispute was pending before the civil Court. From this order the Prosecuting Sub-Inspector of Police, Kottayam, filed a revision petition before the District Magistrate, Kottayam, and the learned District Magistrate by his order dated 4-2-1952 allowed the revision petition holding that it was a fit case in which action should be taken under Section 145, Criminal P. C. By separate proceedings he passed a preliminary order Under the section and placed the property under attachment. The file on the subject was also ordered to be transferred to his Court.

(2.) THE main ground urged in this revision petition is that the learned District Magistrate had no jurisdiction to set aside the order of the Stationary First Class Magistrate. There can be no doubt that this contention is well founded. It is only in cases coming under Sections 436 and 437, Criminal P. C. that the District Magistrate can himself take action in the exercise of his revisional powers. In other cases he has to report for orders of the High Court. Section 435 gives the District Magistrate power to call for and examine the record of any proceeding before a subordinate Court. But except in cases coming under Sections 436 and 437, namely, cases of improper discharge of an accused or improper refusal to commit a person for trial by the Sessions Court, he has to report for the orders of the High Court, the result of such examination. Section 438 (1) reads thus:

(3.) THE further question for consideration is whether the District Magistrate can, apart from his power to set aside an order passed by a subordinate Magistrate, himself start proceedings under Section 145 in a case in which the subordinate Magistrate has declined to take action under that section. We do not think that there is anything to prevent the District Magistrate from doing so. He has got concurrent jurisdiction with the First Class Magistrate in the matter of taking proceedings under Section 145. The mere fact that the First Class Magistrate declined to take action under the section cannot be a bar to the District Magistrate taking action if he deems it necessary to do so for the maintenance of peace. In doing so he will not be acting in the exercise of his revisional powers. He will be only exercising the jurisdiction vested in him. It cannot also be said that in such a case he will be setting aside an, order passed by the First Class Magistrate. When the First Class Magistrate has declined to take action under Section 145 it cannot be said that he has passed an order under that section. ; It will be a different case if the First Class Magistrate takes action under Section 145 and the District Magistrate sets aside that order and orders that no action need be taken under the section. That will clearly be a case of acting without jurisdiction as laid down in the cases cited above. What was held in those cases was that the District Magistrate has no jurisdiction to set aside an order passed by a subordinate Magistrate under Section 145. In none of those cases was it held that the District Magistrate has no jurisdiction to take proceedings under Section 145 in a case in which a subordinate. Magistrate has declined to take action under that section. In - AIR 1941 Pat 105 (A), the Sub-Divisional Magistrate took proceedings under Section 145, and the District Magistrate set aside that order. In - AIR 1922 Pat 554 (B), the District Magistrate set aside a final order passed by the Sub-Divisional Magistrate under Section 145. In - AIR 1929 Cal 805 (D) also the facts are similar. In - AIR 1929 Cal 751 (C), the Sub-Divisional Magistrate drew up proceedings under Section 144, Criminal P. C. and the District Magistrate set aside that order and directed the Sub-Divisional Magistrate to draw up proceedings under Section 145. In - AIR 1949 Cal 241 (E), the Sessions Judge suspended an order for possession passed by a Magistrate under Section 145. In - AIR 1928 Rang 292 (F), the District Magistrate set aside an order passed by the Sub-Divisional Magistrate under Section 145 and directed further enquiry. It will thus be seen that in none of these cases the question arose as to whether the District Magistrate has got power to take proceedings under Section 145 in a case in which a subordinate Magistrate has declined to take action under that section.