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Judgment
This is a petition put in u/s 439 of the Criminal Procedure Code asking for revision of an order of the Joint magistrate of Tellicherry in
Miscellaneous Case No. 30 of 1909 on the 16th October 1911 passed u/s 145 of the Criminal Procedure Code. The preliminary objection is
taken that the Court in the exercise of its revisional powers under the Code cannot deal with orders made under that section and reliance is placed
on Section 435, Clause 3, which provides that proceedings under Chapter XII are not proceedings within the meaning of that section. It is
contended however on behalf of the petitioners that the Court can exercise its powers u/s 439 without calling in aid Section 435. The point has
been argued at great length and most ably by Mr. Seshagiri Aiyar. He relies on the words ""which otherwise comes to its knowledge ""in Section
439, Clause (1) and contends that that phrase has reference to action taken by the High Court on petition in contradistinction to actirn taken when
the record has been called for ""by itself ""in the earlier words of the section which, he contends, is limited to action by the High Court suo motu. He
further relies on similar words in Section 438 which, he argues, entitle a Sessions Judge or District Magistrate likewise to examine records of
proceedings of inferior Magisterial Officers otherwise than by calling for the records u/s 435. He admits that the result of this interpretation of the
sections would be that the Sessions Judge or District Magistrate cannot call for and examine and report for the orders of the High Court the
records of proceedings of inferior Criminal Courts u/s 144, chapter XII and Section 176, but that they can under some power referred to as
otherwise,"" but the authority for which does not appear, get the record without calling for it and report the case for the orders of the High Court
u/s 438. That is to say, that the ordinary channel by which proceedings under these sections and all other judgments and orders, are examined by
the Sessions Judge and the District Magistrate and reported for orders, is blocked up by the Legislature with respect to these proceedings, but that
those officers can still exercise the power of reporting if the record comes before them in some other manner not explained. Now this could hardly
have been the intention of the legislature. The recognized procedure by which those Courts exercise revisional jurisdiction over the proceedings of
inferior Courts ia by calling for the records u/s 435. The legislature has taken away that jurisdiction, persumably intending that these proceedings
which are all of a special nature should not be interfered with either by the High Court or the Sessions Judge or the District Magistrate. These
proceedings are none of them criminal or punitive. Sections 143, 144 and 145 are prohibitive in the interest of the public peace and public good.
Section 176 is a special section empowering a Magistrate to hold an investigation where any person dies when in the custody of the police. We
have no doubt that the legislature intended to leaVe action under these sections where cause is shown to the unfettered discretion of the local
Magistracy; and we cannot from the use of this word ""otherwise"" in Section 438 infer a power in the Sessions Judge and the District Magistrate to
interfere with such orders when they are expressly forbidden by Section 435 to call for the records. In our opinion the words in Section 439 ""the
record of which has been called for by itself are not limited to cases where High Court acts suo motu. It must be borne in mind that although when
the earlier Criminal Procedure Codes were passed the legislature had chiefly in view the exercise of revisional powers by the High Court and those
superior ofticers on inspection of the calendars, it recognized as early as 1872 that parties could invoke these powers by petition. But in any case
whether the High Court or these officers act of their own initiative or on petition, they must call for the records and in fact the petition invariably
asks them to do so in so many words. The reason why the limiting powers axe found only in Section 435 will be found on an examination of the
history of this legislation.
Act X of 1872 is the first code after the establishment of the High Court. ChapterXXK is headed ""Superintendence and Revision'' and begins
with Section 292 which empowers the High Court to issue general rules for the keeping of books etc., by all criminal courts and for the preparation
and transmission of any calendars or statements to be prepared and submitted by such courts. Section 293 provides that all Subordinate Courts
shall send to the High Court such periodical statements or calendars of trials held by such courts as the High Court prescribes exhibiting the
offences charged, the offences of which the accused are convicted and the sentences or orders passed upon them. Section 294 proceeds to lay
down that the High Court may call for and examine the record of any case tried by an)'' Subordinate Court for the purpose of satisfying itself as to
the legality or propriety of any sentence or order and the regularity of the proceedings of such court and Section 295 gives the same power to the
court of Session or the Magistrate of the District with regard to the sentences, orders and proceedings of Subordinate Courts. These four sections
obviously sst out the machinery for revision. The High Court has to make rules for the transmission of the calendars by all courts. All Subordinate
Courts are then required to send certain calendars such as the High Court prescribes, direct to the High Court; and if on the examination of a
calendar the High Court thinks that there may be something illegal or improper about the order, the next process is to call for and examine the
record of such case. The language used in each succeeding section adopts the language of the prior section and it is obvious that these sections
contain the machinery. Then comes Section 297 which is practically identical with the present Section 439 and this lays down what the High Court
can do after examination of the record. It follows therfore that the words ""called for by itself"" in Section 297 have reference to the whole of the
powers of revision given by that chapter to the High Court. The last clause of Section 297 makes it clear that the High Court can hear any person
either personally or by agent in the exercise of its powers of revision which sufficiently indicates that the legislature contemplated that these powers
would be exercised on petition. It will thus be seen that the method by which the records came to the High Court was in one set of sections,
namely, ''294, 295 and 296 and the power of the High Court to deal with the record was in another Section 297, just as now sections 435 and
438 provide the machinery and Section 439 gives the power to dispose of the record.
Act X of 1882 the next Code was practically the same as the present code and continued this method of treatment and in this Code sections
143, 144 and 176 were excluded from the revisional powers. The only alteration made by the present Code is that orders u/s 145 are added to
those excluded. It seems clear therefore that the language in Section 439 ""the record of which has been called for by itself ""is not used in
contradistinction to ""which otherwise comes to its knowledge ""but as contrasted with ""which has been reported for orders ""and that it has reference
to the recognized channels by which the High Court becomes seized of the case, that is to say, either by calling for the record itself or by having the
case reported to it u/s 438 by a Sessions Judge or District Magistrate who has himself called for the records u/s 435; and whether it has called for
the record itself or is dealing with it where the record has been called for by a Sessions Judge or District Magistrate and reported to it, in either
case the Court is acting both of its own motion and on petition. There is therefore no room for the reading of those words ""otherwise comes to its
knowledge ""as having reference to petition. It cannot be suggested that without those words or the word ""otherwise'''' in Section 437 the High
Court, a Sessions Judge or a District Magistrate could not act on petition. When once this is clearly understood the difficulty raised by the omission
of the Legislature to insert the words ""section 439 ""in the exception clause disappears. Section 435 is the initial power whether exercised by the
High Court or the Sessions Judge or the District Magistrate and whether of their own motion or on petition. When the Legislature took away this
power, it cut off the jurisdiction of the High Court at its fountain-head. The machinery by which the High Court became seized of the case under
the Criminal Procedure Code being gone, it was unnecessary to forbid the exercise of powers which depended on such seizin. This view of the
meaning of the sections has been uniformly adopted by all the High Courts. It is the recognized practice of this Court never to interfere with the
excepted proceedings under its revisional powers but only under the charter. Hurbullubh N a rain Singh v. Luchmeswar Prosad Singh (1898) 1.
L.K. 26 Jagomahim Pal v. Ram Kumar Gope ILR (1901) C. 416 Lokeitath Shah Chowdhry v. Nedu Biswas ILR (1902) C. 382 and Kosh
Mahomed Sirkar v. Nazir Mahomed ILR (1905) C. 352 all clearly establish the view of that Court that this jurisdiction of the High Court to revise
under the Criminal Procedure Code is gone. Maharaj Tewari v. Harcharan Rai ILR (1903) A. 144 and Jhingai Singh v. Ram Partap ILR (1906)
A. 150 show that the Allahabad High Court takes the same view. And In re Pandurang Govind ILR (1899) B. 527 In re Pandurang Govind ILR
(1900) B. 179 lay down the same principle. On the above reasoning and uniform authority of all the High Courts we hold that a petition does not
lie u/s 439 tq revise these proceedings.
It is next argued by Mr. Seshagiri Aiyar that these words ""otherwise comes to its knowledge ""might have reference to the power of the High
Court under the Charter in the exercise of its superintendence and that the High Court can call for records under those powers and then proceed
to exercise the powers u/s 439. The answer to this is that the High Court in its exercise of its powers under the Charter has never purported to
deal with cases except where there has been an improper exercise of jurisdiction. Further it would be an extraordinary reading of the Criminal
Procedure Code to suggest that it clothed the High Court in the exercise of its powers under the charter with the whole of the powers that it can
exercise on appeal, while at the same time it provided a special machinery apart from the Charter by which the High Court could exercise those
powers.
It has never yet been suggested that the Criminal Procedure Code intended to set up two different procedures in revision; one, the ordinary
procedure under Sections 435, 438 and 439 and another, by the Charter Act and Section 439. Whatever these words in Section 439 and the
word ""otherwise ""in Section 438 have reference to, it must be some power which the Legislature assumed to exist in the High Court, the Sessions
Judge and the District Magistrate under the Criminal Procedure Code. This has been expressly decided with reference to the words in Section 438
in Nobin Kristo Maker ji v. Russick Lull Laha ILR (1883) C. 268 where the Court used the following language at page 272. ""We think that these
words ''or otherwise'' being words of general import following the particular words ''under Section 435'' must be construed according to the usual
rule and that they mean not ''in any other way whatsoever"" but ""in any other way provided by the Code"" and the Court declined to accept the
contention that they gave the District Magistrate a power quite independent of the power conferred upon him in cases in which he has proceeded
u/s 435. ""We entirely concur with this view. That these words ""or otherwise"" in Section 438 of the Criminal Procedure Code cannot of course
have reference to any power outside the Criminal Procedure Code, is clear from the fact that the Code created the Judicial officers whose powers
are dealt with therein and that their powers must necessarily be found within the four corners of the Code. That being so, there is no reason why a
wider meaning should be given to the words ""or otherwise comes to its knowledge ""in Section 439 and reference ought to be made to the Charter
to explain their meaning. If the words in Section 438 are limited to powers to be found in the Code, as they must be, the words in Section 439
should be similarly limited. They are not words which confer a power. The)7 are words which save any power that exists and it is not unusual for
statutes to contain saving general words of this nature.
The practical importance of the question we have just considered lies in this. If the order is open to revision u/s 439 Criminal Procedure Code,
the petitioners may ask us to go into the record of the case, at any rate, to the extent of considering whether there is evidence to support the
Magistrate''s conclusion, or whether any grave irregularity in procedure has been committed and, to bear such facts in mind in deciding as to
whether to interfere or not. Of course the power of interference in revision is discretionary : but u/s 439 the advisability of interference would be
determined on the same considerations as in an ordinary criminal case.
u/s 15 of the Charter Act, on the other hand, it has never been customary to interfere--certainly in cases of this class except where it can be said
that the Magistrate''s order was passed without jurisdiction. This is most clearly laid down by a bench of this Court in Bhaskari Kasavarayudu v.
BhasJtaram Chalapatirayudti ILR (1908) M. 318 where their Lordships say ""Tha Magistrate had jurisdiction to act u/s 145 Criminal Procedure
Code and this Court haft no jurisdiction to interfere.
Our attention has been drawn to a single caso in which interference has been exercised on other grounds--Beid v. Richardson ILR (1887) C.
In that case no doubt the High Court found that the Magistrate had jurisdiction, but nevertheless went into the merits of the case, decided that
an order u/s 146 Criminal Procedure Code vyas the proper order to be passed and not that passed by the Magistrate u/s 145 and disposed of the
case accordingly. In so doing they placed it on record that they were departing from the usual course and justified the departure on the unusual
circumstances of the case. We cannot attach much importance to an isolated instance of this kind in the face of the otherwise uniform practice to
the contrary; and we may say at once that we can discern no exceptional circumstances in the case before us which would justify departure from
the usual course. In a later case of the same Court Hurbullubh Narain Singh, v. Luchmeswar Prosad Singh ILR (1898) C. 188 the view taken was
that ""although powers as a Court of Revision under the Code (Criminal Procedure Code) cannot be exercised, still, if an order challenged be
without jurisdiction, that is to say, if it be outside those sections, the mere fact of the order purporting to be so passed would not bring it within
those sections so as to debar the exercise of powers u/s 15 of the Charter Act to set it aside as null and void and without jurisdiction."" Precisely
the same view is taken in Mahadeo Kunwar v. Bisu ILR (1903) A. 537 and in In re Pandurang Govind ILR (1889) B. 527.
We, therefore propose in dealing with the present case to confine ourselves to considering whether the order of the Magistrate which we are
asked to revise was passed without jurisdiction. The only ground on which the jurisdiction of the Magistrate in the present case is attacked is his
failure to record in the preliminary order passed by him under the first clause of Section 145 Criminal Procedure Code the grounds on which he
was satisfied that a dispute existed likely to cause a breach of the peace. The order itself runs as follows : ""Whereas on information received from
the Tahsildar of Chirakkal and the Inspector of Police, Cannanore Division, I am satisfied that there is a dispute likely to cause a breach of the
peace concerning the possession of * * * *""? Section 145 requires that the preliminary order shall be in writing and shall state the grounds of the
Magistrate being so satisfied. We do not think this requirement has been complied with in the present case. The contention of the learned vakil for
the petitioners is that failure to do so goes to the jurisdiction of the Magistrate and renders all subsequent proceedings null and void and without
jurisdiction. His chief reliance is on the principle laid down in a Privy Council Case reported in Nusserwanjee Pestonjee v. Meer Mynoodeen
Khan Wallud Meer Siidroodeen Khan Bahadoor (1855) 6 M.T.A. 134. This ruling cannot in our opinion be extended to the case before us. The
judgment delivered so long ago as 1855 deals with the effect of the failure to specify in a deed of submission to arbitration the time within which the
award was to be given. Bombay Regulation VII of 1827, Section 3, requires that this should be specified in the deed of submission and the Privy
Council held that the omission constituted a fatal objection to the validity of the award given thereunder. They stated that ""Where jurisdiction was
given to a Court by an Act of Parliament or by a Regulation in India and such jurisdiction is only given upon certain specified terms contained in the
Regulation itself, it is a universal principle that these terms must be complied with in order to create and raise the jurisdiction, for if they be not
complied with the jurisdiction does not arise"" in applying these observations the important words are ""Where such jurisdiction is only given on
certain specified terms"" that means where jurisdiction is ""founded"" on compliance with certain preliminary conditions. The regulation under
consideration in that case ousts under certain specified conditions the jurisdiction of the ordinary tribunals constituted by law and gives jurisdiction
to a private tribunal constituted ad hoc and having no existence apart from the particular purpose for which it was constituted. Their lordships held
that these specified conditions must be rigidly and exactly fulfilled. In the present case the section gives to ordinary tribunals in the shape of certain
classes of Magistrates the power to do certain things and we are clearly of opinion that the principles laid down in the above ruling have no
application to the case before us. If the jurisdiction of a Magistrate to take action under the Criminal Procedure Code is destroyed by failure to
comply with an}'' provision of the Code as to his preliminary procedure, then it would have to be held, for example, that failure to sign the
complainant''s statement on oath as required by Section 200 Criminal Procedure Code rendered any subsequent trial and conviction null and void
and without jurisdiction. It may be suggested that such an irregularity would be covered by Section 557 Criminal Procedure Code. But that section
might with equal propriety be invoked to cover the omission with which we are concerned.
We need do no more than refer to Subramania Aiyar v. King Emperor ILR (1902) M. 61 which has been cited on behalf of the Petitioners.
That ruling simply deals with che effect of disobedience to an express provision of law as to the mode of trial and in no way touches on the effect
of an error of procedure antecedent to the trial or the jurisdiction of the Court. Indeed it shows that the case in Moore''s Indian Appeals cannot be
read as contended for by Mr. Seshagiri Aiyar, for, if it should be so read then the Privy Council in this later case would have held that the whole
trial was without jurisdiction owing to the illegality of the charge which is at the inception of the trial.
The applicability of both these rulings to a case like the present has been carefully considered by two learned Judges of the Calcutta High
Court (Rampini and Mookerjee JJ.) in their order of reference in the case of Kosh Mahomed Sirkar v. Nazir Mahomed ILR (1905) C. 352 and
they have arrived at the same conclusions as ourselves.
The exact effect of an omission to set forth in a preliminary order u/s 145 the grounds of the Magistrate''s opinion has been considered in
several cases both in this and other High Courts, the conclusions arrived at being by no means uniform. In this Court we have on the one side the
ruling of Munro and Sanka ran Nair J J. in Posuka Kulla v. Chikka Hiria (1907) 17 M.L.J. 449 and on the other side the ruling of Subramania
Aiyar J. in Sayid Mahomed Ghouse Saheb and Another Vs. Sayid Khadir Badshaw Saheb, and In the matter of Chinnappudayan ILR (1907) M.
548 and of Wallis J. in Posuka Kidla v. Chikka Hiria (1907) 17 M.L.J. 449 which was the subject of a Letters Patent Appeal in the case first
quoted. Opinions might therefore appear to be equally divided: but a consideration of the judgments in the above cases tends in out-opinion
strongly against petitioner''s contention. Subramania Aiyar J. was undoubtedly of opinion that the failure to record reasons in the preliminary order
did not affect the jurisdiction of the Magistrate. Wallis J. was of the same opinion. He does not discuss the question but adopts the reasoning of the
referring Bench in Kosh Mahomed Sirkar v. Nazir Mahomed ILR (1905) C. 352 already referred to. Munro and Sankaran Nair JJ. do not give
reasons for differing from his view, beyond distinguishing the Calcutta case on the ground that in that order a police report was mentioned as the
basis of the order. If this be a valid ground of distinction we may point out that in the order in the present case the Magistrate sets forth that he is
satisfied ""on information received from the Tahsildar of Chirakkal and the Inspector of Police, Cannanore Division."" It is therefore by no means
clear (to put it on the lowest ground) that the Bench would have held that the Magistrate''s jurisdiction was defective in the present case.
But apart from this, we may point out with great respect for the learned Judges composing the Bench that they do not appear to have
considered the very weighty reasoning of Rampini and Mookerjee JJ. in support of their views on their second point of reference. It is this
reasoning which appears to have been relied on by Wallis J. and in this reasoning we also concur. It appears to us to be so conclusive that we
cannot usefully add anything to it.
It may, of coarse, be argued that the views of the referring Bench on this point have not been specifically endorsed by the Full Bench which
confined itself to answering the 1st question propounded. But, as we already stated, the arguments of the Bench are, to our mind, convincing even
without other authority. The Full Bench has most certainly suggested no dissent therefrom; and we may add that having answered the 1st question
in the negative holding that the initial order was not substantially defective, they could not possibly have come to any other conclusion than one, that
the omission to record grounds in the preliminary order did not affect the jurisdiction of the Magistrate.
This is the view which commends itself to us, although we are glad to fortify ourselves by the weighty authority and careful reasoning which we
have quoted. The full Bench of the Calcutta High Court having stated the law of that Court in Kosh Mahomed Sirkar v. Nazir Mahomed ILR
(1905) C. 352 it is not necessary to discuss the earlier Calcutta rulings relied on by the learned vakil for petitioners. (Mohesh Sircar v. Nit rain
Bagh ILR (1900) C. 981 Nittyanand lioy v. Paresh Nath Sen ILR (1905) C. 771. The essential requisite to give a Magistrate jurisdiction u/s 145
Criminal Procedure Code is that he must be satisfied from information of some sort that a dispute exists likely to cause a breach of the peace
concerning land or water or the boundaries thereof in his jurisdiction. Once he is so satisfied, his jurisdiction is complete and his subsequent action
must be considered in relation to procedure, not jurisdiction. For the above reasons, we decline to interfere with the Magistrate''s order and
dismiss the petition.
It is none the less the duty of all Magistrates to comply strictly and fully with these and all other provisions of the Code and of District
Magistrates where necessary to draw th� attention of Subordinate Magistrates to this point.