PURNA CHANDRA TEWARI Vs. SAOGAT ALI MALLICK

JUDGEMENT

(1.) This Rule is directed against an order passed by the learned Sub-Divisional Magistrate, Alipore, refusing to issue any order under Section 144 of the Code of Criminal Procedure in favour of the petitioner. The petitioner first party wanted to restrain the opposite parties under Section 144 of the Code of Criminal Procedure from plying any boat at the Ferryghat of Achhipore-Uluberia on the river Hooghly or within two miles thereof on either side of the Ferryghat. On receipt of this petition, the Sub-Divisional Officer, Alipore, directed the O. C. of Budge Budge Police Station to enquire and report by 24-3-60 and in the meantime he was enjoined to see that no breach of the peace took place. On enquiry the O. C., Budge Budge Police Station, submitted a report on 3-3-60 by which he prayed that a proceeding under Section 144 of the Code of Criminal Procedure might be drawn up against the above noted persons, i.e., the opposite parties in this case, restraining them to ply ferry-boat so that law and order might be maintained at the Achhipur-Uluberia ferryghat. The learned Sub-Divisional Magistrate then passed this order on 4-3-60 : "Seen report of the police. Heard the lawyer of the petitioner. I do not think that there is any apprehension of breach of the peace at present. The petitioner can go to the Civil Court for relief. Filed". The petitioner first party has come to this Court against the said order of the learned Sub-Divisional Magistrate.

(2.) A preliminary objection was taken by Mr. Mukherjee appearing for two of the opposite parties (viz. Nos. 4 and 17) to the effect that the petitioner first party should have in the first instance gone to the District Magistrate or Additional District Magistrate, as the case may be, for rescission or alteration of the order made by the learned Sub-Divisional Magistrate as provided for under Section 144(4) of the Cr. P. C. It is contended that the petitioner could not get any remedy before this Court under Section 439 of the Cr. P. C. without first applying under Section 144(4) of the Cr. P. C.

(3.) In my opinion, there is nothing to prevent the High Court to interfere with the positive or negative order passed under Section 144 of the Cr. P. C. by a Magistrate. As held by the Madras High Court in a case reported in Pitchai v. Muhammad Atham, ILR 56 Mad 149: (AIR 1932 Mad 720; the jurisdiction conferred by Section 144(4) of the Cr. P. C. is neither appellate nor revisional jurisdiction but a special jurisdiction conferred by a special provision of the statute and the failure to apply under Section 144(4) Cr. P. C. for the rescission or alteration of the order under Section 144 of Cr. P. C. is no bar to the filing of a revision petition against it. The preliminary objection raised by Mr. Mukherjee is disposed of accordingly.