SEVUGAN CHETTIAR Vs. KARUPPAN CHETTIAR

JUDGEMENT

(1.) This is a petition to revise the order of the Subdivisional Magistrate, Ramnad, dated 18th January 1937. The order purports to be one made Under Section 144(4). The original order Under Section 144(1) was passed by the Taluk Magistrate of Sivaganga and it related to the performance of what is known as Sevvai Pongal in a certain temple in Nattarasankottai. It is not necessary to go into the merits of the dispute which led to the passing of this order. It is enough to say that there is a small minority in that community to which the temple belongs whose participation in the festival along with the majority of the community is resented by the majority. The Taluk Magistrate passed an order that Sevvai Pongal by the minority was to be per. formed on 19 January and by the majority on 26 January, both being Tuesdays and he directed that neither party should interfere with the celebration of the festival by the other party on the date allotted to it. The minority presented an application to the District Magistrate on the very day on which the Joint Magistrate passed the order, that is to say, 16 January. The application was apparently made under Sub-section 4, Section 144, Criminal P.C. That petition or application was transferred by the District Magistrate to the Joint Magistrate Ramnad, for disposal on the same day. The Joint Magistrate, Ramnad, has no territorial jurisdiction in Nattarasankottai which belongs to the Devakottai Subdivision and lies within the jurisdiction of the Subdivisional Magistrate, Devakottai. The latter was however on leave and the joint Magistrate, Ramnad, was in charge of the Devakottai Subdivision at the time. He continued to be in charge till 17 January including the 17 itself.

(2.) The Subdivisional Magistrate, Devakottai, returned to duty on the 18 morning and resumed charge of the division and thereby the Joint Magistrate Ramnad, became functus officio, so far as charge of Devakottai division and his jurisdiction over that division were concerned, in the morning of the 18th. The order that is now sought to be revised is one passed by the Subdivisional Magistrate, Ramnad, on the 18th, that is to say, after he had become functus officio in this manner. The order is attacked on several grounds. So far as the power of the District Magistrate to transfer is concerned, it is not necessary in my opinion to decide whether in a case of this kind there is a power to transfer. No specific authority on the point has been quoted, but I have said some time ago that there is no power of transfer in respect of an order passed Under Section 144. In this case however even assuming that there was no power of transfer, the order of transfer cannot be regarded as void and cannot be set aside merely on that ground in view of Section 529(f), Criminal P.C., and also of Section 531 of the same Code. The other objections are (1) that the Magistrate to whom the application Under Section 144(4) was transferred had ceased to have jurisdiction to deal with the application on 18 January when he passed the order, and that the order is therefore void, and (2) the order actually passed goes beyond the jurisdiction conferred by Section 144(4) even if the Magistrate had such jurisdiction; in other words, that the order which he passed is not a mere rescission or alteration of the order passed by the Taluk Magistrate but goes beyond it. There can be no doubt that a Magistrate who has ceased to possess jurisdiction cannot pass any valid order in respect of any matter even if it was properly before him before he became functus officio. In this particular case apart from the question of whether the order was valid or not, the Joint Magistrate, Ramnad, had no doubt jurisdiction to deal with the matter when he received the application by transfer, because he was then in charge of the Devakottai Sub-Division, and thus had jurisdiction in the capacity of a Magistrate to whom the Taluk Magistrate of Sivaganga was subordinate, to alter or rescind any order made by the Taluk Magistrate. But when he actually passed the order he had ceased to be in charge of that division and therefore ceased to be a Magistrate to whom the Taluk Magistrate was subordinate, and the jurisdiction conferred by Section 144(4) had ceased to exist so far as he was concerned. That sub-section runs as follows,: Any Magistrate may, either on his own motion or on the application of any person aggrieved rescind or alter any order made under this section by himself or any Magistrate subordinate to him, or by his predecessor in office.

(3.) The joint Magistrate of Ramnad on the 18 January was not then either the Magistrate who passed the order or his successor or the Magistrate to whom the Magistrate who passed the order is subordinate. The jurisdiction conferred by Section 144(4), Criminal P.C., is neither appellate nor revisional, and that jurisdiction is a special one that can be exercised only if the actual terms of the section are strictly satisfied. I am therefore of opinion that the joint Magistrate of Ramnad who had ceased to be in charge of the Devakottai sub-division on the 18 January had no power to rescind or alter the order made by the Taluk Magistrate, Sivaganga, on the 16 January. It is clear from Section 530(1) that when any Magistrate not empowered by law issues an order Under Section 144, his proceedings shall be void. This observation applies with equal force to the present order as to an order which comes strictly within the limits of Sub-clause (4). The order passed by the joint Magistrate did not merely alter or rescind the order of the Taluk Magistrate; it also prohibited the performance of the festival altogether by either of the parties. In fact, he went to the length of passing a separate order Under Section 144(2) prohibiting members of the Nattarasankottai public from celebrating the festival. The order runs as follows: Whereas it has been made to appear to me that a breach of the peace is imminent if you members of the two parties, names given separately, and your followers celebrate Sevvai Pbngal together, and whereas you are unwilling to celebrate the festival together amicably, I hereby prohibit you members of the Nattarasankottai public, from celebrating Sevvai Pongal. This order will be in force for a period of two months. Given under my hand and the seal of the Court this 18 day of January 1937.