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Bondalapudi Thatayya v. Gollapudi Basavayya & Others
Structured Summary of the Opinion — Cr.R.C. Nos. 195 & 208 of 1953
Factual and Procedural Background
The opinion concerns two revision petitions arising from events following an order made under Section 144, Criminal Procedure Code (Cr.P.C.). On 2-7-1952 Bondalapati Thatayya filed a petition against Gollapudi Basavayya and 13 others. An ex parte order under S.144 (cl. (2)) was passed by the Additional First Class Magistrate, Masulipatnam, on 7-7-1952 restraining the respondents from interfering with a bodi used by the petitioners to take water to their lands. The respondents applied to rescind that order on 17-7-1952. While that application was pending, Thatayya reported alleged violation of the S.144 order to the police on 21-7-1952 and to the Magistrate, and the police reported disobedience on 25-7-1952. On 7-8-1952 the Additional First Class Magistrate filed a complaint under Section 188, Indian Penal Code (I.P.C.) before the Stationary Sub-Magistrate, Avanigadda (C.C. 661 of 1952).
The respondents sought withdrawal of that complaint before the Additional District Magistrate, who withdrew it by an order dated 9-9-1952. Against that withdrawal the revision Cr.R.C. No. 195 of 1953 was filed.
Separately, while the withdrawal petition was pending, the Circle Inspector of Police registered a charge-sheet alleging offences under Sections 143, 186 and 430 I.P.C. for an incident said to have occurred on 28-8-1952. That charge-sheet was filed on 27-11-1952 as C.C. No. 1006 of 1952. The accused's petition to bar the court's proceeding was dismissed, and that order led to Cr.R.C. No. 208 of 1953.
Legal Issues Presented
- Whether, when the Additional First Class Magistrate passed an order under Section 144 Cr.P.C., he was acting as a court such that a complaint filed by him for disobedience (under S.188 I.P.C.) could only be withdrawn by the Sessions Judge (i.e., the authority to whom an appeal ordinarily lies from the Additional First Class Magistrate).
- Whether, if the Additional First Class Magistrate was not acting as a court, the proper authority to withdraw the complaint was the District Magistrate and not the Additional District Magistrate, given the subordinate relationships under the Cr.P.C.
- In Cr.R.C. No. 208 of 1953: whether the charge-sheet filed by the police was an attempt to evade sanction provisions (i.e., whether the charge-sheet dated a different occasion and raising different offences shows an attempt to circumvent sanction requirements applicable to prosecution for disobedience of the S.144 order).
Arguments of the Parties
Arguments advanced by the petitioners (as recorded)
- It was contended (by learned advocate Mr. Veerabadrayya for the petitioners) that the Additional First Class Magistrate, in passing the S.144 order, was acting as a court. Reliance was placed on Arunachalam Pillai v. Ponnuswami Pillai (1916 M.W.N. 824), which held an order under S.144 to be judicial.
- If the Magistrate was acting as a court, the complaint for disobedience filed by him was a judicial act and, therefore, the only authority that could withdraw such a complaint would be the appellate authority to whom an appeal ordinarily lies (i.e., the Sessions Judge), not the Additional District Magistrate.
- Alternatively, if the Magistrate was not acting as a court, then the power to withdraw the complaint lay with the District Magistrate (to whom First Class Magistrates are subordinate), and not with the Additional District Magistrate.
Other parties' arguments / positions (as recorded)
- The Additional District Magistrate had withdrawn the complaint; the respondents relied on that withdrawal (the opinion records the existence of that withdrawal and related proceedings).
- The text of the opinion does not contain a detailed, point-by-point narration of the respondents' counter-arguments beyond the procedural acts recorded (i.e., petition for withdrawal and the factual assertions in the charge-sheet described in Cr.R.C. No. 208).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Arunachalam Pillai v. Ponnuswami Pillai (1916 M.W.N. 824) | Held that an order under S.144 Cr.P.C. is judicial (Magistrate acting as a court). | The court regarded this decision as correctly characterizing S.144 orders as judicial in light of the subsequent repeal of clause (3) of S.435 Cr.P.C.; the reasoning was adopted as applicable to orders now passed under S.144. |
| Nataraja Pillai v. Rangaswami Pillai (1923 M.W.N. 240) | Held, following an earlier Full Bench, that proceedings under S.144 are not judicial and the Magistrate acts only as a public servant. | The court observed that this decision was given prior to the repeal of cl. (3) of S.435 and, in the present position after repeal, cannot be held good law; however it also noted the proposition that if an S.144 order is passed by a person acting as a court, that person must be treated as a court when sanctioning prosecution. |
| Sundaram v. The Queen; Ponnuswami v. The Queen (1883 I.L.R. 6 Mad. 203) — Full Bench | Full Bench decision that proceedings under the provision corresponding to present S.144 were not judicial proceedings under the earlier Code. | The court treated that Full Bench decision as superseded in effect by the later repeal of cl. (3) of S.435, which altered the revisional jurisdiction context and supported treating S.144 matters as judicial for present purposes. |
| Nagu Servai v. Emperor (1934 M.W.N. 483) | Held that filing of complaint by a Magistrate for disobedience of an order under S.145 (analogous context) was a judicial act. | Referred to as one of the decisions supporting that the act of filing complaint by a Magistrate may be judicial; cited to show consistent judicial characterization in later decisions. |
| Vijayaranga Reddiar v. Muthuswami (1944 M.W.N. 600) | Held that the act of a Magistrate filing a complaint for disobedience of a S.144 order was a judicial act. | Applied as an authority consistent with treating filing of complaint by a Magistrate for disobedience as judicial; cited in the court's reasoning that such acts are judicial acts. |
| Jaswant v. State (1951 A.I.R. All. 828–829) | Single-judge decision stating that an Additional District Magistrate has all the powers of a District Magistrate and, accordingly, a Sub-Divisional Magistrate (or First Class Magistrate) is subordinate to the Additional District Magistrate. | The court noted this authority but did not adopt it; instead it distinguished and preferred another line of authority (see Prathulal Ramlal / Probhulal) on the question of subordination. |
| Prathulal Ramlal v. Emperor (1944 A.I.R. Nag. 84–87) / referenced as Probhulal v. Emperor | Bench decision holding that the Additional District Magistrate does not enjoy the same status as District Magistrate and cannot be treated as the District Magistrate simply because he has certain powers; only one person in the district can be District Magistrate. | The court agreed with this reasoning and held that the Additional First Class Magistrate is subordinate to the District Magistrate and not to the Additional District Magistrate; this was central to disposing Cr.R.C. No. 195. |
| Chinnayya Goundan v. Emperor (1948 M.W.N. 357; cr. 69) | Relevant to issues of sanction/withdrawal in other factual contexts. | The court found that the ruling in Chinnayya Goundan would not apply to the facts of Cr.R.C. No. 208 of 1953, and therefore did not rely on it to support the respondents' contention in that matter. |
Court's Reasoning and Analysis
The court first took up Cr.R.C. No. 195 of 1953 and considered two main points. It undertook a focused analysis of the legal character of orders under S.144 Cr.P.C. and of the proper authority to withdraw a complaint lodged by the Magistrate for disobedience of such an order.
On whether S.144 orders are judicial, the court reviewed earlier decisions. It observed that earlier Full Bench and single-judge decisions had been divided: Sundaram / Ponnuswami (Full Bench) and Nataraja Pillai held that S.144 proceedings were not judicial, whereas Arunachalam Pillai and later authorities (Nagu Servai, Vijayaranga Reddiar) treated filing of complaints by Magistrates in that context as judicial acts. The court emphasized the legislative change — the repeal of clause (3) of Section 435 Cr.P.C. — and concluded that, in the present statutory position, the reasoning in Arunachalam Pillai and the later decisions applied and supported the view that proceedings under S.144 are judicial and that a person who passed an S.144 order should be treated as a court when he sanctions prosecutions for disobedience.
The court noted, however, that an ancillary question about the precise scope of Section 476 Cr.P.C. and its bearing on whether a public servant filing a complaint is acting "as a court" was not necessary to decide for disposing the matter, since the second point (subordination/authority to withdraw) would determine the outcome regardless of which view on the judicial character of the S.144 act were accepted.
Turning to the second point (jurisdiction to withdraw), the court examined the subordinate relationships under Sections 10 and 17 Cr.P.C. and prior decisions addressing whether an Additional District Magistrate is equivalent to a District Magistrate for purposes of exercising withdrawal power. The court considered Jaswant v. State (single-judge) which treated the Additional District Magistrate as having the powers of a District Magistrate, but it preferred and agreed with the reasoning in Prathulal Ramlal / Probhulal (a Bench decision) which held that an Additional District Magistrate is not the District Magistrate and that there can be only one District Magistrate in a district; hence, the Additional First Class Magistrate remains subordinate to the District Magistrate and not to the Additional District Magistrate.
Whichever characterization is accepted — that the Additional First Class Magistrate acted as a court or as a public servant — the court reasoned that the Additional District Magistrate did not have jurisdiction under the applicable provisions (S.195(5) Cr.P.C. and related sections) to withdraw the complaint filed by the Additional First Class Magistrate. Consequently, the withdrawal order was held to be without jurisdiction.
On Cr.R.C. No. 208 of 1953 (challenge to charge-sheet), the court observed that the charge-sheet alleged offences on a different date and under different sections (including S.186 I.P.C. rather than S.188). The court held that the contention that the charge-sheet was an attempt to evade sanction provisions did not hold on these facts and that the ruling in Chinnayya Goundan would not apply to the facts of that case.
Holding and Implications
Holding:
- Cr.R.C. No. 195 of 1953 is allowed. The order passed by the Additional District Magistrate withdrawing the complaint filed by the Additional First Class Magistrate is set aside as being without jurisdiction. The order sent by the Additional District Magistrate to the Stationary Sub-Magistrate, Avanigadda is withdrawn. The result is that the complaint filed by the Additional First Class Magistrate, Masulipatam, for an offence under Section 188 I.P.C. against the respondents in Cr. R.C. No. 195 of 1953 stands reinstated.
- Cr.R.C. No. 208 of 1953 is dismissed. The court found the charge-sheet (filed later and alleging different offences and a different date) did not amount to an evasion of sanction provisions on the facts before it.
Implications / Consequences:
- The immediate practical effect is to restore the position of a complaint filed by the Additional First Class Magistrate in Cr.R.C. No. 195 of 1953; respondents remain at liberty to pursue appropriate remedies (appeal or revision) to those authorities to whom the right of appeal lies or who possess the power to withdraw the complaint, as noted by the court.
- The court expressly held that the Additional District Magistrate did not have jurisdiction to withdraw the complaint in the circumstances of that case, and it criticized the Additional District Magistrate's remarks characterizing the filing of the complaint as improper.
- The opinion discusses authorities and the effect of the repeal of clause (3) of S.435 Cr.P.C. on the judicial character of S.144 orders; however, the court did not frame an omnibus new precedent beyond its orders in these matters. There is no express statement in the opinion that it was laying down a binding new general rule beyond resolving the present disputes; the direct effects are those set out above for the parties in these two revision petitions.
N.T.R
The above two petitions arise out of an order passed by the Additional First Class Magistrate, Masulipatnam, under S. 144 Cr.P.C On a petition filed on 2-7-1952 by one Bondalapati Thatayya against one Gollapudi basavayya and 13 others an order was passed under S. 144, cl. (2), Cr.P.C by the Additional First Class Magistrate on 7-7-1952. Before 7-7-1952 the Additional First Class Magistrate called for a report from the police on the petition filed by the said Thatayya. Before the report was sent, the court was again moved by the said Thatayya for an emergent ex parte order. It was then the ex parte order was passed on 7-7-1952 restraining the respondents in that petition, who are also respondents here (in Cr. R.C No. 195 of 1953) from interfering with the bodi through which the petitioners were said to have been taking water to their lands. The respondents thereupon presented a petition to rescind that order on 17-7-52. While that petition was pending Thatayya reported to the Station House officer on 21-7-1952 that the order under S. 144, Cr.P.C has been violated by the respondents by completely obliterating the entire bodi. On 21-7-1952 the said Thatayya filed a petition before the Additional First Class Magistrate making the same allegations as in the petition to the police and requesting the court to take action for the disobedience of the order. On a report by the police on 25-7-52 that the order has been disobeyed, a complaint was filed on 7-8-52 by the Additional First Class Magistrate before the Stationary Sub Magistrate, Avanigadda for an offence under section 180, I.P.C The case was numbered as C.C 661 of 1652. The respondedts thereupon preferred a petition on 25-8-1952 before the Additional District Magistrate for withdrawal of the complaint. The Additional District Magistrate withdrew the complaint and it is against that order Cr.R.C No. 195 of 1953 has been filed. The order by the Additional District Magistrate was passed on 9-9-1952.
While the petition for withdrawal of the complaint before the Additional District Magistrate was pending the Circle Inspector of Police registered a case against these respondents for offence under ss. 143, 186 and 430 I.P.C alleging that these respondents have formed themselves into an unlawful assembly and obstructed a public servant, to wit, a police constable, and caused resistance to him, and also stated that they caused diminution of supply of water. This, according to the charge-sheet, happened on 28-8-1952. The charge-sheet, was filed on 27-11-1952 in C.C No. 1006 of 1952 in the Stationary Sub-Magistrate's Court, Divi. The accused therein filed a petition stating that the court could not proceed with the case and the petition was dismissed, and it is against the order Cr. RC No 208 of 1953 has been filed.
I will take up first Cr.R.C No. 195 of 1953. Two points are raised in the above revision. The first is that the Additional First Class Magistrate, Masulipatam when he passed an order under S. 144 Cr.P.C did so as a court and the complaint filed by him for the offence under S. 188 I.P.C is by a public servant acting as a court and the only authority that could withdraw the complaint is the authority to whom an appeal ordinarily lies from the court of the Additional First Class Magistrate; that is to say, the only authority that could withdraw the complaint is the Session Judge of Masulipatam. The second point is, that even if it is held that the Additional First Class Magistrate, Masulipatam was not acting as a court, still the authority who could withdraw the complaint is the District Magistrate, and not the Additional District Magistrate, as the Additional First Class Magistrate is subordinate only to the District Magistrate and Dot to the Additional District Magistrate.
In support of his contention that the Additional First Class Magistrate was acting as a court, when he passed an order under S. 144 Cr.P.C the learned advocate Mr. Veerabadrayya relied on Arunachalam Pillai v. Ponnuswami Pillai 1916 M.W.N 824, a decision of a Divisional Bench of this court. In that case the Bench has held that the order under S. 144 Cr.P.C is a judicial and not an administrative order, and that the Magistrate was acting as a Court. In Nataraja Pillai v. Rangaswami Pillai 1923 M.W.N 240 another Bench of this court has held following the Full Bench ruling of this Court in Sundaram v. The Queen, Ponnuswami v. The Queen 1883 I.L.R 6 Mad. 203, that a Magistrate in passing an order under S. 144 Cr.P.C is not acting as a court and that the order is passed only as a public servant and not as a court. They referred to Arunachalam Pillai v. Ponnuswami Pillai and they differed from that ruling, and they pointed out that the previous decision of this court in Sundaram v. The Queen, Ponnusami v. The Queen is a decision by a Full Bench of this court in which it has been held that the proceedings under S. 144 (same as S. 516 of 1872 Code; are not judicial proceedings. The decision of the Full Bench in Sundaram v. The Queen, Ponnuswami v. The Queen was under the Code of 1872. S 518 of the Code of 1872 corresponds to S. 144 of the present Code. S. 435 of the present Criminal Procedure Code corresponds to ss. 294, 295 and 520 of the Code of 1872. In the Codes of 1872, 1882 and finally of 1898, there was a provision in S. 435 that the orders under S. 144 and proceedings under Chapter XII and S. 176 are not proceedings within the meaning of S. 435 (vide clause 3 of Act of 1898 prior to its amendment in 1923). S. 435 Cr.P.C provides for the calling for an examination of the records of any proceedings before any inferior criminal court. S. 435 (3) (before the amendment of 1923) makes it quite clear that the proceedings before the Magistrate under S. 144 are not judicial proceedings and the order is not liable to be revised by the High Court in its revisional jurisdiction. Neither the decision In Nataraja Pillai v. Rangaswami Pillai nor the decision in Arunachalam Pillai v. Ponnuswami Pillai refers to this. I may say that the decision in Nataraja Pillai v. Rangaswami Pillai which was given prior to the amendment of 1923 was good law then, and the decision in Arunachalam Pillai v. Ponnuswami Pillai was not good law then. But now that cl. (3) has been repealed and it is not disputed that the orders under S. 144 are subject to the revisional jurisdiction of the High Court, it seems to me the reasoning in Arunachalam Pillai v. Ponnuswami Pillai applies to orders now passed under S. 144 and Nataraja Pillai v. Rangaswami Pillai cannot be held to be good law now. In my opinion, these proceeding are judicial proceedings, and it is reasonable as pointed out in Nataraja Pillai v. Rangaswami Pillai to hold that “if the order unders. 144 is passed by a person acting as a court that person must also be treated as a court when he has sanctioned the prosecution for the disobedience of the same.” This later decision in Nataraja Pillai v. Rangaswami Pillai is an authority for holding that if the order under S. 144 is passed by an authority, it must be treated as a court when it sanctions prosecutions also. Coming to a later decision in Nagu Servai v. Emperor 1934 M.W.N 483 2. Bardswell, J. sitting as a single judge without noting the decision in Nataraja Pillai v. Rangaswami Pillai follows Arunachalam Pillai v. Ponnuswami Pillai and holds that the filing of the complaint by the Joint Magistrate for disobeying the orders under S. 145 Cr.P.C was a judicial act. In this decision also there is no reference to the repeal of cl. (3) of S. 435 Cr.P.C In Vijayaranga Reddiar v. Muthuswami 1944 M.W.N 600 there was an order under S. 144 promulgated by the Sub Magistrate, and for disobedience of the same a complaint was filed by him under S. 188 I.P.C There, Kuppuswami Ayyar, J. refers to the decisions in Nagu Servai v. King Emperor, and comes to the conclusion that the act of filing a complaint by the Magistrate was a judicial act. It is therefore clear from the decisions cited above and from the repeal of cl. (3) of S. 435, that the order was not only judicial, but that he must be acting as a court.
It may be mentioned that S. 476 of the Criminal Procedure Code is restricted now only to clauses (b) and (c) in S. 195 and does not apply to clause (a), though prior to amendment of 1923, it was not so restricted and applied to whole of S. 195. It is therefore contended that a public servant when he filed a complaint for an offence under S. 188 cannot be acting as a court. What exactly is the scope of S. 476 Cr.P.C and what its bearing is on the question as to whether the Sub Magistrate, when passing an order is only a public servant or is a public servant acting as a court, I do not propose to discuss and give a decision in this case, as this case can be decided on the second point that is raised by the learned advocate for the petitioners. The question will arise only when we are called upon to decide as to which clause of S. 195 applied for the with drawal of a complaint filed by the Magistrate, whether it is clause (3) or clause (5). As in either view the Additional District Magistrate has no jurisdiction, it is unnecessary for me to decide that point.
Now the question is whether the Additional First Class Magistrate is subordinate to the Additional District Magistrate within the meaning of S. 195(5) Cr. P. C Under S. 10 Cr.P.C as Additional District Magistrate has got all the powers of a District Magistrate, and therefore it is contended that when the First Class Magistrate is subordinate to the District Magistrate, he is subordinate to the Additional District Magistrate also. This view is upheld in Jaswant v. State 1951 A.I.R All. 828 829. That is a decision by a single judge. The learned Judge states as follows:
“The public servant whose order was disobeyed has passed it as a Sub Divisional Magistrate, and in that capacity he was subordinate to the District Magistrate. An Additional District Magistrate has got the powers of the District Magistrate. Even otherwise, a Sub-Divisional Magistrate as a public servant, is subordinate also to the Additional District Magistrate. Consequently the complaint was rightly filed by the Additional District Magistrate.”
There is no discussion and it proceeds on the assumption that the Sub Divisional Magistrate is subordinate to Additional District Magistrate. A contrary view is expressed in Prathulal Ramlal v. Emperor 1944 A.I.R Nag. 84-87. That is a decision by a Bench of that court. At page 87, this is what they say:
The fact that the Additional District Magistrate may have all the powers of the District Magistrate does not make him a District Magistrate inasmuch as there can be only one person in the district who can be a District Magistrate.”
Earlier they referred to sub-sec. 3 of S. 10 under which the Additional District Magistrate is held as subordinate to the District Magistrate in certain respects. I agree with the reasoning in Probhulal v. Emperor. The fact that under certain circumstances and for certain purpose mentioned in clause (3) of s 10 an Additional District Magistrate is considered as a subordinate to the District Magistrate clealy shows that the Additional District Magistrate does not enjoy the same status as that of a District Magistrate and by virtue of S. 17 all Magistrates are subordinate to the District Magistrate. The Additional First Class Magistrate is, therefore subordinate to the District Magistrate and not to the Additional District Magistrate.
Whichever view is taken, either the First Class Magistrate acting as a court or purely as a public servant, the Additional District Magistrate is certainly not the authority who can withdraw the complaint filed by the First Class Magistrate. In one view it would be the Sessions Court and in another view the District Magistrate. The order of the Additional District Magistrate therefore, is without jurisdiction, and it is hereby set aside. I may in passing observe that the Additional District Magistrate was not quite justified in stating that it was improper on the part of the Additional First Class Magistrate to file a complaint. There was an order under S. 144 and whether it was rightly passed or wrongly passed, it was disobeyed according to the report of the police and the allegations contained in the petition, and disobedience is an offence. If the First Class Magistrate was satisfied that his order was disobeyed, the proper thing for him to do was to file a complaint; and not sit silent without taking action for the disobedience. The Additional District Magistrate, in my opinion, was not justified in passing such remarks against the Additional First Class Magistrate. The order of the Additional District Magistrate in C.R.P No. 16 of 1952 is hereby set aside and the order which was sent by him to the Stationary Sub Magistrate, Avanigadda is withdrawn. The result is that the parties are relegated to the position of a complaint being filed by the Additional First Class Magistrate, Magulipatam against the respondents in Cr. R.C No. 195 of 1953 for an offence under S. 188 I.P.C It is open to the respondents to take such steps as they may deem fit either by way of appeal or by way of revision to such authorities to whom the right of appeal lies, or who has the power to withdraw the complaint. Cr. R.C No. 195 of 1953 is allowed.
As regards Cr. R.C No 208 of 1953 the main contention is that the charge sheet is an attempt to evade the sanction provisions. It is clear from the charge sheet that the offence was on a different date, and also the offence is under S. 186 and not under S. 188 I.P.C The ruling in Chinnayya Goundan v. Emperor 1948 M.W.N 357; cr. 69 will not apply to the facts of this case. Cr. R.C No. 208 of 1953 is therefore dismissed.
N.T.R
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