VARIED PORINCHUKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) On 6 10 1964, the Executive First Class Magistrate, Trichur made an ex parte order under S.144 of the Criminal Procedure Code prohibiting the two petitioners and 15 others, together referred to as the A Party, as also the public in general, from using a certain piece of land as a burial ground for the reason that such use was likely to lead to a clash between the members of the A Party on the one hand and certain others known as the B Party on the other and thereby create a disturbance of the public tranquillity. The order was to remain in force for two months. On 5 1 1955 the State Government, acting under sub-s.(6) of the section, extended the operation of the order until further orders it had earlier, by a notification dated 4-12-1964, extended it for a period of one month. On 14-10-1965, the petitioners made an application under sub-s.(4) of the section to the Additional District Magistrate, Trichur, to whom the Executive First Class Magistrate is subordinate, for rescinding the order made by the latter. Despite the fact that the application was addressed to the Additional District Magistrate and was presented to him in person and that it expressly referred to sub-s.(4) of S.144 of the Code, the Additional District Magistrate does not seem to have appreciated that it was his duty to dispose of the application judicially in accordance with the provisions of the Code. He seems to have treated it as a mere administrative matter to be dealt with by him in his other capacity as Collector of the District all Collectors have been appointed ex officio as Additional District Magistrate and most regrettably he disposed of the application by a memorandum dated 20 10 1965, signed, "For Collector" and couched in the following terms: "The petitioner is informed that his request cannot be complied with", reducing in the process, the number of petitioners from two to one. (This was perhaps slightly better than what he did with an earlier application for the same purpose made to him by the petitioners on 23 1 1965. That he had merely lodged on 3 3 1965 giving no reply to the petitioners). Now, what sub-s.(5) of S.144 of the Code requires is that when a magistrate receives an application under sub-s.(4) he shall afford the applicant an opportunity of appearing before him either in person or by pleader and showing cause against the order. Further that, if the magistrate rejects the application wholly or in part, he shall record in writing his reasons for so doing. Nothing of the kind was done. In fact, as we have already remarked, the Additional District Magistrate does not seem to have realised that he was called upon to act judicially in accordance with the provisions of the Code. That being so, we have no doubt that we must now, in exercise of our powers under S.439 and 561 A of the Code, direct the Additional District Magistrate to discharge his duty under the Code and dispose of the application made by the petitioners in accordance with sub-s.(5) of S.144. We need hardly add that before doing so he should take the trouble to acquaint himself with the relevant provisions of the Code.

(2.) It is contended on behalf of certain members of the B Party who have entered appearance before us, though not we must say by the Public Prosecutor, that the State Government having otherwise directed under sub-s.(6) of S.144, the Additional District Magistrate has no jurisdiction to make an order under sub-s.(4) at any rate it would be a futile exercise of jurisdiction since, even if the order were rescinded under sub-s.(4), it would continue in force by reason of the direction given by the State Government under sub-s.(6); and it is because of this contention that this case has been referred to a division bench. Now, there is nothing in sub-s.(4) which in the least suggests that the exercise of the power it confers on the magistrate is at all dependent on the non exercise of the power that sub-s.(6) confers on the State Government; and the contention, it seems to us, stems from a misreading of sub-s.(6). As if the power conferred thereunder on the State Government were to sit in revision or in appeal over the order made by a magistrate under sub-s.(1) or otherwise affirm that order or make it absolute so as to merge it in the direction made under sub-s.(6). Or, as if the power conferred by sub-s.(6) were to make an independent order of prohibition. That, of course, is not so. Ordinarily, an order under sub-s.(1) of the section is to remain in force for not more than two months, but, in the case of certain classes of orders made under the sub-section, though not all, the State Government is given the power to otherwise direct by notification in the Official Gazette, in other words, to direct that the order shall remain in force beyond the period of two months. But, what remains in force is the order passed by the magistrate; the order is still his order and indeed there is no other order under the section; and, if that order goes, nothing remains on which the extension directed by the State Government can operate. The direction under sub-s.(6) has no independent existence. It has no life of its own, and all it can do is to extend the life of an order made by the magistrate under sub-s.(1). We have no doubt whatsoever that a direction given by the State Government under sub-s.(6) must suffer the same vicissitudes as the order passed under sub-s.(1) suffers either under sub-s.(4) or on revision by the High Court. The power of the magistrate to rescind the order under sub-s.(4) is no more affected by the exercise of the power by the State Government under sub-s.(6) than the power of the High Court to revise the order under S.439 would be affected by a like exercise. The reason for sub-s.(4) is apparent. An order under sub-s.(1) can be made ex parte; it can be directed to the public generally; it can affect very valuable rights; therefore it was thought necessary that there should be some machinery by which a person aggrieved by the order could have his grievance adjudicated upon; hence sub-s.(4) which provides that a person aggrieved may move the magistrate who passed the order or a superior magistrate to rescind or alter it; and since the power conferred by the sub-section is a judicial power, sub-s.(5) enjoins that the magistrate shall give the applicant an opportunity to appear and show cause. That judicial power vested in the magistrate under sub-s.(4) cannot in any way depend on the executive power vested in the State Government under sub-s.(6). The existence of the conditions required to justify an order under the section is always a matter for the judicial satisfaction of the magistrate. Only the continuance of the conditions found by the magistrate, in cases of danger to human life, health or safety or a likelihood of a riot or an affray, so as to justify the continuance in force of the order beyond two months, is left to the executive satisfaction of the State Government. Indeed, the power under sub-s.(6) could as well have been given to some other executive authority like the Superintendent of Police, and, in that event, we do not suppose that it would for a moment have been argued that the exercise of that power by the Superintendent of the Police would deprive the magistrate of the power to act under sub-s.(4). It is the accident that the power is given to the State Government which is the administrative superior of the magistrate, that has led to this misreading of the scope of sub-s.(6) of S.144 in relation to sub-s.(4).

(3.) In Kamla Kant v. State of Bihar (AIR 1962 Patna 292), sub-s.(6) of S.144 of the Code was struck down as violative of Art.19(1)(b), (c) and (d) of the Constitution. There, the question whether a magistrate could make an order under sub-s.(4) after the State Government had exercised its power under sub-s.(6) was not considered. But, if that decision implies that an order under sub-s.(6) is an independent order unaffected by any remedy that an aggrieved party may successfully pursue, either under sub-s.(4) of S.144 or under S.439 of the Code, we must express our respectful dissent. And, whether in the view we are taking of the scope of sub-s.(6), the striking down of that provision would be justified is not a matter on which we are called upon to express any opinion indeed the vires of that provision has not been assailed before us.