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1 - 10 of 23 (0.20 seconds)Section 435 in The Code of Criminal Procedure, 1973 [Entire Act]
Sundram Chetti And Ors. And Ponnusami ... vs The Queen on 9 January, 1883
6. In the Code of 1872 Section 518 corresponds to Section 144 of the present Code and Section 520 states that orders made under Section 518 are not judicial proceedings. This latter section was obviously the result of the decision of the Full Bench of the Calcutta High Court already referred to. Under the Code of 1872 we have two decisions upon this point, namely, E.V. Ramanuja Jeeyarswami v. Ramanuja Jeeyar (1881) I.L.R. 3 M. 354, a decision of Innes and Muthuswami Aiyar, JJ., in which it was held that proceedings under Section 518 of that Code are not revisable by the Courts as such orders were expressly declared in that Code to be not judicial proceedings and Sundram v. The Queen., Ponnuswami v. The Queen (1883) I.L.R. 6 M. 203 (F.B.), where at page 222 Sir Charles Turner stated:
Nataraja Pillai vs Rangaswami Pillai And Three Ors. on 17 January, 1923
10. We now come to the Code of 1923. But before doing so there is another case to which reference has been made which, although it was decided in 1923, was before the Code of that year came into force. That is Nataraja Pillai v. Rangaswami Pillai (1923) I.L.R. 47 M. 56 : 44 M.L.J. 328 a decision of Ayling and Ramesam, JJ. The facts in that case were that a Sub-divisional Magistrate passed an order under Section 144, Criminal Procedure Code, prohibiting certain persons from interfering with a religious ceremony. On disobedience of that order he sanctioned their prosecution for an offence under Section 188, Indian Penal Code, and it was held that the Magistrate was not, when passing the order under Section 144, Criminal Procedure Code, acting as a Court within the meaning of Clause (7) of Section 195 of the Criminal Procedure Code, but was only acting as a public servant and hence the proper appellate authority to revoke the sanction was not the Sessions Court but the District Magistrate as provided by Clause (6) of Section 195.
Section 62 in The Code of Criminal Procedure, 1973 [Entire Act]
Section 404 in The Code of Criminal Procedure, 1973 [Entire Act]
Vedappan Servai And Ors. vs M. Periannan Servai And Ors. on 16 May, 1928
If this is so, then we are bound to take a different view to that of Ramesam, J., in the case in Vedappan Servai v. Periannan Servai (1928) 55 M.L.J. 621, where he says that Clause (3) to Section 435 was redundant. What is the effect of the omission of that clause in the present Code? We cannot say that that omission was unintentional. We have to take the Code as it is. Up to the present Code, from 1872 until 1923, a ban was placed upon the High Court's power of revision with regard to proceedings under Section 144. Now that ban has been removed. It may have been unintentionally removed but we are not concerned with that. We must hold that the effect of that commission is that the ban is removed and that the High Court has now power to revise such orders. We are aware that, if this decision is right, it may lead to most unfortunate consequences. It is obvious that the Magistrate has most frequently to act in an emergency and that it will be a disaster, if, when he does make an order, a Criminal Revision Petition is at once presented to the High Court and a stay order applied for. We come to the decision we have with great regret and only say that, if Clause (3) to Section 435 was omitted by mistake, we hope that legislation will as soon as possible restore it, at any rate as far as Section 144 of the Criminal Procedure Code is concerned.
Arunachalam Pillai vs Ponnuswami Pillai on 20 August, 1918
8. Sir Arthur Collins, therefore, took the view that when in the Code of 1872 proceedings under Section 518 were declared not to be judicial proceedings it was not because they were not judicial proceedings but because it was intended to prevent these orders made upon sudden emergencies from being the subject of revision and the Code of 1882 by stating that they were not proceedings more accurately described them. The next Code to be considered is that of 1898 and it is similar to the Code of 1882 in that by Sub-section (3) of Section 435 orders made under Section 144 are not proceedings within the meaning of Section 435. On the 1898 Code there is a decision in Arunachalam Pillai v. Ponnusami Pillai (1918) I.L.R. 42 M. 64 : 35 M.L.J. 454 of Sadasiva Aiyar and Napier, JJ., which is strongly relied upon by Mr. Jayarama Aiyar in support of his argument. In that case it was held that the High Court has no appellate or revisional power to interfere with the orders of a public servant except in so far as they are orders passed by the public servant in his capacity of a Court subordinate to the High Court and that an order passed by a Sub-Magistrate under Section 144 of the Criminal Procedure Code is an order made by him in his capacity as a Court and he is also acting as a Court when he grants or refuses sanction for a prosecution for the disobedience of such order. In that case the order passed under Section 144 of the Code had been disobeyed but the Stationary Sub-Magistrate passed an order refusing sanction to prosecute the person who had disobeyed the order and Napier, J., on page 66, says:
L.O. Clarke vs Brojendra Kishore Roy Chowdhry on 12 January, 1909
11. He was referred to a decision of the Privy Council in Clarke v. Brojendra Kiskore Roy Chowdhury (1912) L.R. 39 I.A. 163 : I.L.R. 39 C. 953 : 23 M.L.J. 32 (P.C.) but in his opinion that case did not help the petitioner because it only showed that in some parts of the Code the words "Courts" and "Magistrates" are used interchangeably and that under Section 96 a Magistrate issuing search warrants was acting as a Court but this did not conclude the matter as to Section 144.