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Judgment
Pakenham Walsh, J.—This is an application to this Court to vacate the order, dated 19th April, 1932, in Cr. M.P. No. 270 of 1932 by
which the order of the Sub-divisional Magistrate of Ramnad u/s 144 of the Code of Criminal Procedure was suspended in its operation - the first
ground taken is that this Court had no power to suspend the order. The argument adopted is that powers of revision are exercised u/s 435(1),
Criminal Procedure Code, which only applies to suspension of execution of imprisonment or fine or u/s 439, Criminal Procedure Code. Mr.
Jayarama Aiyar has taken me through various sections of the Code mentioned in Section 439. Sections 423, 426, 427, 428 and 338 none of
which he argues applies to this case, and I agree. Now there are certainly sections of the Code such as Section 188 under which execution of
orders passed therein can be suspended, but they do not fall under any of the sections mentioned in Section 439, Criminal Procedure Code. No
doubt Section 520 specially provides for stay of execution under Sections 517, 518 and 519. Mr. Jayarama Aiyar argued that such orders as are
positive and not negative would come u/s 426 and he even argues that a positive order u/s 144 would fall under it. That section begins with the
words, ""Pending any appeal by a convicted person"". These words govern the whole section. It therefore follows in my opinion that where there is
no appeal pending by a convicted person the section cannot come into force; and it cannot be invoked. It seems, therefore, obvious that since
there are orders execution of which can be stayed by this Court which do not fall u/s 439 read with Section 426 they are either dealt with u/s 561-
A in the exercise of its inherent powers or u/s 107 of the Government of India Act. Thus there is no section (apart from Section 561-A) in the
Code of Criminal Procedure which enables the High Court to stay criminal proceedings. It is not correct to say that therefore any power of stay
which cannot be found within the four corners of the Code cannot be exercised, if we assume, as Mr. Jayarama Aiyar does, that Section 561-A
cannot be invoked. In this connection Chockalingam Ambalam v. Emperor (1927) M.W.N. 716 may be referred to. I have been shown no case
where it has been held that this Court has no power of stay of execution of an order, positive or negative, passed u/s 144. Marudayya Thevar Vs.
Shanmugasundara Thevar and Another, was quoted. This was u/s 145 and it related to the appointment of a Receiver. I am doubtful whether the
analogy as to the power of the Court to appoint a Receiver u/s 145 can be carried so far as to prohibit the Court staying execution of an order u/s
If that reasoning is carried further, it will equally prevent the Court staying positive orders u/s ""144, which Mr. Jayarama Aiyar at the end of
his argument admitted the Court could do.
The second argument is that no revision petition lies to this Court as the parties could have gone to the District Magistrate u/s 144 who has
power to rescind or alter an order u/s 144(4). It is argued that these powers of the District Magistrate are appellate powers and therefore u/s
439(5) no appeal having been made to him, no revision petition to this Court can be entertained. Several cases have been quoted on the analogy of
the old Section 195(7) but I do not think they have any bearing on this case for the simple reason that that section did not empower the Court to
revise or change an order passed by itself which Section 144(4) does, and all the cases quoted proceed on the footing that the appellate or revising
Court is superior to the Court whose order is sought to be appealed against or revised. The peculiarity of Section 144(4) is that it enables the
Magistrate who passed the order to rescind or alter it. This power therefore of a superior Magistrate when he proceeds to do the same thing must
be similar in its essence. It appears tome, therefore, that nothing can be gathered from cases which discuss whether revisional and appellate
powers are the same or different things. Here we are dealing with a peculiar section, namely, Section 144(4), conferring a jurisdiction upon a
Magistrate which, whether even if it can be called appellate or revisional, cannot be so called in the ordinary sense of those words namely of a
superior Court dealing with an inferior one. There is one direct decision on the point, and it is the only one which has been quoted to me, namely,
Saturhan Das v. Makhan Das (1921) 72 I.C. 171 . It was there held that the jurisdiction conferred by Section 144(4) of the Code of Criminal
Procedure upon a Magistrate to rescind or alter an order made under the section by himself or any Magistrate subordinate to him or by his
predecessor in office is neither appellate nor revisional jurisdiction; it is a special jurisdiction conferred by a special provision of the statute.
Therefore in my opinion this argument that a revision petition cannot be filed to this Court must be rejected. I should not, however, be understood
as in any way encouraging direct applications to this Court, when there is some Magistrate who can alter or rescind the order, but this Criminal
Revision Petition has already been admitted in this Court, and I am not prepared to hold that it could not be filed here.
On the merits of the present petition I propose to say very little because the main question as to whether the agreement between the present
petitioner and the counter-petitioners is a lease or a licence is one which will more properly come up in deciding the criminal revision petition itself.
But it seems to me perfectly clear that the view which the learned Magistrate took in passing the order was that this was an ordinary lease and that
since the parties under the lease had to vacate as they did not pay their rent within the specified time the petitioner before him was entitled to have
an order u/s 144 excluding the counter-petitioners before him from the site. A few sentences of the order may be quoted.
The principal contention of the counter-petitioners is that the clause in the rajinama that the defaulters should forfeit the lease is not intended to
operate but is only introduced in terrorem and that it is not valid in law even otherwise.
Then he says:
In a nutshell their case is even though they have violated the condition of the rajinama with regard to the payment of the dues to the proprietor of
the lands the lease is subsisting and that they have every right to be on the lands in question.
He proceeds then to say:
The terms of the rajinama are quite clear that in default of payment of the dues to the proprietor of the lands even after the expiry of one month''s
days of grace with interest thereon at 12 per cent, per annum the counter-petitioners shall forfeit their subsequent right of the fishing lease on the
lands.
It may be noted that in the compromise petition liberty to build houses, etc., was granted and the petitioners could remove them at the end of the
lease. Nowhere in the order so far as I can see does the learned Magistrate appear for a moment to regard the compromise as a licence and not as
a lease. If he viewed it as a lease, he was not correct in passing the order evicting the petitioners from it, even though liable to eviction in a Civil
Court unless by no other means could a serious breach of the peace be prevented. It was for the landlord, in the view taken by the Lower Court,
to evict them by civil process. It was for that reason, apart altogether from the question as to what the compromise really meant, that I considered
this order was prima facie wrong and should be suspended. After reading the affidavits on both sides I do not see sufficient reason to vacate my
order, dated 19th April, 1932, but I wish to make it clear that I am in no way deciding the question whether the agreement is a licence or lease.