BONDALAPATI THATAYYA Vs. GOLLAPUDI BASAVAYYA AND OTHERS;

JUDGEMENT

(1.) THE above two petitions arise out of an order passed by the Addil. First Class Magistrate Masulipatam, under Section 144, Criminal Procedure Code On a petition filed on 2.7.1952 by one Bondalapati Thatayya against one Gollapudi Basavayya and 13 others an order was passed under Section 144, Clause (2), Criminal P C. by the Additional First Class Magistrate on 7.7.1952. Before 7.7.1952 the Additional First Class Magistrate called for a report from the police on the petition filed by the said Thatayya. Before the report was sent, the Court was again moved by the said Thatayya for an emergent ex parte order. It was then the ex parte order was passed on 7.7.1952 restraining the respondents in that petition, who are also respondents here (in Cr. R. C. No. 195 of 1953; from interfering with the bodi through which the petitioners were said to have been taking water to their lands. The respondents thereupon presented a petition to rescind that order on 17.7.1952. While that petition was pending Thatayya reported to the Station House Officer on 21.7.1952 that the order under Section 144, Criminal Procedure Code has been violated by the respondents by completely obliterating the entire bodi. On 23.7.1952 the said Thatayya filed a petition before the Additional First Class Magistrate making the same allegations as in the petition to the police and requesting the Court to take action for the disobedience of the order. On a report by the police on 25.7.1952 that the order has been disobeyed, a complaint was filed on 7.8.1952 by the Additional First Class Magistrate before the Stationary Sub Magistrate, Avandgadda for an offence under Section 188, Penal Code. This case was numbered as C. C. No. 681 of 1952. The respondents thereupon preferred a petition on 25.8.1952 before the Additional District Magistrate for withdrawal of the complaint. The Additional District Magistrate withdrew the complaint and it is against that order Cr. R. C. No. 195 of 1953 has been filed. The order by the Additional District Magistrate was passed on 9.9.1952.

(2.) WHILE the petition for withdrawal of the complaint before the Additional District Magistrate was pending the Circle Inspector of Police registered a case against these respondents for offences under Sections 143, 186 and 430, Penal Code, alleging that these respondents have formed themselves into an unlawful assembly, and obstructed a public servant, to wit a police constable, and caused resistance to him, and also stated that they caused diminution of supply of water. This according to the charge -sheet, happened on 28.8.1952. The charge -sheet was filed on 27.11.1952 in C. C. No. 1006 of 1952 in Stationary Sub Magistrate's Court, Divi. The accused therein filed a petition stating that the Court could not proceed with the case and the petition was dismissed and, it is against the order Cr. R. C No. 208 of 1953 has been filed.

(3.) I will take up first Cr. R. C. No. 195 of 1953. Two points are raised in the above revision. The first is that the Additional First Class Magistrate, Masulipatam, when he passed an order under Section 144, Criminal Procedure Code did so as a Court and the complaint filed by him for the offence under Section 188, Penal Code is by a public servant acting as a Court and the only authority that could withdraw the complaint is the authority to whom an appeal ordinarily lies from the Court of the Additional First Class Magistrate; that is to say, the only authority that could withdraw the complaint is the Sessions Judge of Masulipatam. The second point is, that even if it is held that the Additional First Class Magistrate, Masulipatam was not acting as a Court, still the authority who could withdraw the complaint is the District Magistrate, and not the Additional District Magistrate, as the Additional First Class Magistrate is subordinate only to the District Magistrate and not to the Additional District Magistrate.