VEDAPPAN SERVAI Vs. MPERIANNAN SERVAI

JUDGEMENT

(1.) This is a revision petition filed against the order of the Taluk First Class Magistrate of Tiruppathur, dated 12 April, 1928 under Section 144 of the Criminal Procedure Code. A preliminary objection is taken by the learned vakil for the respondent that this petition does not lie. He argues that the High Court acting under Section 435 of the Criminal Procedure Code can call for and examine the record of any proceeding only before any inferior Criminal Court and that, in the present case, the order of the Magistrate acting under Section 144 is not the order of a Court. In support of this argument he relies on the case reported in Nataraya Pillai V/s. Rangaswami Pillai (1923) I.L.R. 47 M. 56 : 44 M.L.J. 328 which was a judgment of Ayling, J. and myself. That decision was passed prior to the amendment of Section 435 by the omission of Clause (3). It is true that Mr. Ranganadha Aiyar in his Criminal Procedure Code expresses the opinion that the decision in Nataraja Pillai V/s. Raxngaszmmi Pillai (1923) I.L.R. 47 M. 56 : 44 M.L.J. 328 is no longer law on account of the amendment, but the. correctness of this opinion is questioned by the learned vakil for the respondent and I have to consider the point.

(2.) It is true that, so far as Section 145 of the Code is concerned, the omission of Clause (3) of Section 435 permits a revision to the High Court. But it is clear that, but for Clause (3), an order under Section 145 is an order by a Court operating between the two contending parties. The words "to attend his Court in persoa" in Section 145 clearly show that the Magistrate acting under Section 145 is a Court; but the old Clause (3) of Section 435 Laid down that it is not a proceeding within the meaning of Section 435. Now that the clause is omitted the section certainly operates.

(3.) Now, are the consequences exactly the same in the case of Section 144? At first sight one may think it is so; but it seems to me that as to Section 144, Clause (3), Section 435 was somewhat redundant and only made matters clear. Even without it, it is doubtful whether Section 435 applies. There is nothing in Section 144 to indicate that the Magistrate acting under that section is a Court as in the case of Section 145. Dr. Swaminathan, appearing for the petitioner, argues that the decision in Natwaja Pillai V/s. Rangaszuami Pillai (1923) I.L.R 47 M. 56 : 44 M.L.J. 328 purports to follow the Full Bench decision in Sundram V/s. The Queen (1883) I.L.R. 6 M. 203 (F.B.) and another Full Bench decision in Abbas Ali Chozvdhry V/s. Illim Meah (1870) 14 W.R. (Cr.) 46, that the Madras case was decided on the Code of 1872 and the Calcutta case was on the Code of 1861. Section 518 of the Code of 1872 corresponds to Section 144 of the present Code and Section 520 of that Code corresponds to Clause (3) of Section 435 and he argues that Section 520 was not referred to in Ponnuszmmi V/s. The Queen (1883) I.L.R. 6 M. 203 (F.B.) and now that Section 435 (3) is omitted the decision does not apply; but it seems to me that Ayling, J. and myself carefully considered the fact that those decisions were on the earlier Codes and we observed: We find nothing in the changes which would render less applicable the considered opinions of the learned Judges in that case.