PANDURANG S KATTI Vs. MINNIE HENRIETTA KATTI

JUDGEMENT

(1.) This is an application for revision of the order passed by the Chief Presidency Magistrate confirming the order passed by the Marylebone Police Court on May 28, 1626, under Section 3 of the Act of 1920 to Facilitate Enforcement of Maintenance Orders (10 & 11 Geo. V, c. 33) whereby the petitioner was ordered to pay to his wife a sum of two pounds a week for maintenance, and a sum of two shillings for costs. The Chief Presidency Magistrate has confirmed the order under Act XVIII of 1921. Rule was issued on the question whether the High Court has jurisdiction to interfere in revision or otherwise with the order of the Chief Presidency Magistrate.

(2.) The principal Act relating to the summary jurisdiction of the Magistrates in reference to married women is the Act of 1895 (58 & 59 Vic. c. 39). Under Section 4 any married woman can apply to a Court of summary jurisdiction for an order of maintenance under the Act. The Act of 1895 is amended by an Act of 1920 (10 & 11 Geo. V, c. 33) and by an Act of 1925 (15 & 16 Geo. V, c. 51). The enforcement in England or Ireland of the maintenance orders made in other parts of His Majesty's Dominions and Protectorates and vice versa is regulated by the Act of 1920 (10 & 11 Geo. V, c. 33). A similar reciprocal legislation is enacted in India by Act XVIII of 1921. Under Section 4 of Act XVIII of 1921 the certified copy of the maintenance order made by any Court in a reciprocating territory and transmitted by the proper authority of that territory to the Governor General has to be sent for being registered in the High Court, if the Court which made the order was of a superior jurisdiction, and to a Court of summary jurisdiction if the said Court was not a Court of superior jurisdiction. Under Section 2 of Act XVIII of 1921 "Court of summary jurisdiction" means the Court of a Chief Presidency Magistrate or of a District Magistrate. The order in this case was sent under Section 7 of Act XVIII of 1921 to the Court of the Chief Presidency Magistrate for confirmation. The learned Chief Presidency Magistrate on September 4, 1926, declined to confirm the provisional order, and remitted the case to the Court which made the order for further evidence, and on February 5, 1927, confirmed the order, and directed that steps be taken to have the order enforced. The only question arising at the present stage is whether the High Court has jurisdiction to interfere with the order of the Chief Presidency Magistrate. The point is one of first impression, and is not covered by any authority.

(3.) It was argued by the learned Government Pleader that an appeal was provided by Section 3, Clause 6, and Section 4, Clause 7, by the English Act of 1920 (10 & 11 Geo. V, c, 33) but no appeal was provided by the corresponding Secs.6 and 7 of the Indian Act XVIII of 1921, and that, under Section 404 of the Criminal Procedure Code, there could be no appeal except as provided by the Code, and that the order of the Chief Presidency Magistrate was intended by the Legislature to be final and was not subject to the revisional jurisdiction of the High Court, Reference was made to the decision in Rangoon Botatoung Co. V/s. Collector, Rangoon , p.c, which has been explained in the case of Secretary of State V/s. Sri Rajah Chelikani Rama Rao (1916) 18 Bom. L.R. 1007, 1013, p.c. It is clear that no right of appeal is provided by Act XVIII of 1921. But it is contended, on the other hand, on behalf of the petitioner that the absence of any provision allowing an appeal from the order does not necessarily exclude the revisional jurisdiction of the High Court, that the Court of the Chief Presidency Magistrate is not a persona designata, but is referred to as a Court under Section 2 and Section 7 of the Act of 1921, and that the order of the Chief Presidency Magistrate in this case is subject to the revisional jurisdiction of the High Court under Section 107 of the Government of India Act and Clauses 27 and 28 of the amended Letters Patent if not under Section 435 of the Criminal Procedure Code. The absence of any provision allowing an appeal does not necessarily exclude the revisional jurisdiction of the High Court. On the other hand, cases in which there is express prohibition of an appeal, e. g., Secs.413 and 414, Criminal Procedure Code, are subject to revision by the High Court. We think that the order of the learned Chief Presidency Magistrate is a judicial and not merely an executive or administrative order. It was held in Emperor V/s. Huseinally (1905) 7 Bom. L.R. 463 that Section 15 of the Indian Extradition Act ousted the jurisdiction of the High Court to inquire into the propriety of the warrant, but left open the question of the High Court's power to interfere with a Magistrate's action, if it was proved that such action was consequent upon a warrant issued by a Political Agent which was plainly illegal. There is no provision in Act XVIII of 1921 similar to Section 22 of the Indian Press Act, excluding the reviaional jurisdiction of the High Court. See Besant V/s. Advocate General of Madras (1919) 21 Bom. L.R. 867, p.c. Under the old Criminal Procedure Code proceedings under Section 145 were expressly excluded from the revisional jurisdiction of the High Court under Section 435, Criminal Procedure Code, but it was held in several cases that the High Court had power under Section 107 of the Government of India Act to set aside proceedings under Section 145, Criminal Procedure Code, instituted without juriadiction notwithstanding Section 435, Clause (3), of the Code. It is sufficient to refer to the case of Pigot V/s. Ali Mahammad Mandal (1920) I.L.R. 48 Cal. 522. The absence of any provision in the old Criminal Procedure Code with reference to the inherent power to make consequential orders referred to in the said case is now remedied by Section 561A of the amended Criminal Procedure Code.