GOPALJI PRASAD Vs. STATE OF SIKKIM

JUDGEMENT

(1.) THE impugned proceeding under Section 144, Criminal Procedure Cede clearly goes to show how this well-known section, so frequently resorted to by the people and also by the public authorities, is very often abused by improper and indiscriminate user. But before I proceed to consider and pronounce upon the legality and the propriety of this proceeding in some details, I will have to dispose of some of the preliminary objections to the maintainability of this revisional application raised by and on behalf of the State and the other respondent.

(2.) IT has been urged that this revisional application is not maintainable as the impugned order under Section 144. Criminal Procedure Code has already come to an end by efflux of time. If a proceeding under Section 144, Criminal Procedure Code is, as it cannot but be, a judicial proceeding, the order passed therein cannot but attract the revisional jurisdiction of the High Court, if such jurisdiction is invoked within the time allowed by law and if there are grounds justifying interference in revision and the fact that the impugned order has ceased to be in force cannot be, by itself, a bar to the maintainability of a revision. It has then been urged, in modification of the earlier contention, that, not that the High Court cannot, but that the High Court should not interfere in a revision where the impugned order is no longer in force. I do not think that any such straight cut and blanket proposition can be laid down and that, in my view, all that can be said is that the exercise of revisional power being discretionary, a revisional Court may in a given case decline to interfere on the ground that the impugned order has already ceased to be in force.

(3.) IT may be noted that the provisions of this Section 144, Criminal Procedure Code had to meet the challenge on the ground of constitutionality before the Supreme Court more than once on the ground that they put unreasonable restrictions on and were, therefore, violative of the fundamental rights guaranteed by the Constitution and one of the main grounds on which this challenge was repelled by the Supreme Court was that the orders passed under the section are judicial orders and being so, could "be challenged in revision before the High Court under Section 435 read with Section 439, Criminal Procedure Code". (See, State of Bihar v. K. K. Misra ; Babulal Parate v. State of Maharashtra and Madhu Limaye v. Sub-Divisional Magistrate, Monghyr. If this amenability to the revisional jurisdiction of the High Court is, as held by the Supreme Court in the decisions noted above, what, inter alia, saves the provisions of Section 144, Criminal Procedure Code from constitutional attack, then such amenability cannot be, as a matter of law, made dependent on the fact as to whether the impugned order is still in operation or has spent its force on the day when the High Court proceeds to review the same in the exercise of its revisional power. I have always thought that the revision of an order under Section 144, Criminal Procedure Code is not to depend on the continuity or otherwise of the order on the date of revision and now that the Supreme Court has observed that this revisability is one of the safeguards which saves the section from constitutional attack, I am further fortified in my view that if a party affected by an order under Section 144, Criminal Procedure Code has challenged such order in revision before the High Court within the time allowed by law, the revision is not to be rejected merely on the ground that on the day when such jurisdiction is invoked or exercised, the order has ceased to be in force. There is neither law nor logic behind this view that an order is no longer open to revision if the same has already ceased to be in force and the supposed logic behind such view, if pushed further, would lead to the absurd position that an order of imprisonment is also not open to revision, if the same has spent its force and the accused has served out the imprisonment before he has moved the revisional Court. Both on principle as well as on authority I am, therefore, of the opinion that a revision against an order under Section 144, Criminal Procedure Code is maintainable even though on the date when the revisional jurisdiction is invoked or exercised the order has died out; but, as I have already noted, the fact that the impugned order has already spent its force may properly be taken into consideration by the revisional Court in determining whether interference in revision would be justified or warranted. In this case, as I will presently show, the impugned order suffers from several serious illegalities and infirmities and, therefore, I have no doubt that I should intervene in the exercise of my revisional powers, even though the order has already died out, at least to declare that its birth was illegal and illegitimate.