P (PLP)

ORDER

This is an application for the revision of an order passed by the District Magistrate, Bahawalpur on 28th September, 151‑

9. The material facts of the said order are as under:‑‑ Certain respectable citizens of Bahawalpur town have complained that the holding of cinema shows has deteriorated the morals of the people and has also been the potential cause of increase in the commission of crime. For those reasons it is ordered that the cinema shows in the District of Bahawalpur should certain closed for one clay in a week on s night between, Friday and Saturday. The order shall remain in force for two months for the time, being. The order was notified in the official Gazette. The learned counsel for the petitioner has raised the following contentions for the cancellation of the order :‑--

1. That the order purports to have been made under section 144 Criminal Procedure Code. It does not satisfy the require ments of the provisions of section 144, Criminal 'Procedure Code and is illegal.

2. If it was held that the order was purely an administrative one the High Court had jurisdiction to vacate it. In support of this view 25 I C 1996 was cited, 1914 Cr. L J 668 being the equivalent. There can be no doubt about the ipse dixit nature of the order of the District Magistrate. It does not specify the provision of law under which he deemed fit to pass the order. He was therefore asked by me to clarify his order. His reply is in the following words:‑-- " that the order was passed in any capacity as District Officer (executive side) i.e. Deputy Commissioner and not under sec tion 144, Criminal Procedure‑ Code." I think that this explanation of the District Magistrate settles the matter conclusively that he did not intend to issue the order under section 144, Criminal Procedure Code. In other words, the disobedience of the order would not be attended with consequences as envisaged by section 136, Criminal Procedure Code and liability to the penalty prescribed in section 188, Indian Penal Code would not befall the alleged offender, Such being the case could the High Court interfere' with the order of the District Magistrate. The learned counsel for the petitioner says that in the light of 1914 Cr.L.J 668, the High Court had jurisdiction to uphold or set aside the order. In that case the learned Judicial Commissioner's Court of Oudh. laid down the following principle of law :‑‑ " The authority of every Magistrate to do an act as Magistrate or as Collector if such authority exists, must ultimately be found in the powers conferred by Parliament; The immediate power may be an executive order of the local administration but the power of the local administration to make an order must be derived either directly or indirectly, from Parliament, and it is a mistake to assume that because an officer is an executive officer or a judicial officer, he has any power to interfere with private or public persons which cannot be derived from a lawful origin " This is however not the final view on the matter and con trary opinion was expressed by a Division Bench in 1940 Cal.

30. In that case a stray elephant was captured and the captor informed the District Magistrate who 'allowed him to keep the same till inquiry was made. In the meanwhile, the owner appeared and he put in his claim .to the elephant. The captor demanded exhorbitant costs of capture and the District Magistrate did not allow him the figure. He fixed a certain. sum arid directed the owner to deposit it in Court. On revision to the High Court it was decided that the order of the District Magistrate was not a judicial order because it was not enforceable and no penalty had been exacted under it. Similarly in 1943 Mad. 470, it was held that an order of the District Magistrate directing the subordinate Magistrates not to permit certain persons to practise at the Bar was adminis trative order and could not be revised under sections .435 and 439 Criminal Procedure Code. Exactly on those lines was the decision given in 1919 Mad. 610 that the High Court had no appellate or revisional authority over administrative orders of a District Magistrate Another instance of like nature is 1934 Cal. 487. 'In that case names of certain jurors were cancelled and then restored. It. was laid down that the order of Collector was not judicial order and could snot be looked into by the High Court. The revisional jurisdiction of the High Court is vested by virtue 'of sections 435 to 439 Criminal Procedure Code. In sections 435 and 438 of the Criminal Procedure Code the word proceedings " occurs prominently. It connotes any proceedings before any inferior Criminal Court. In the present case the ply of the District Magistrate clearly shows that he was not acting as a Criminal Court. He is in addition the Deputy Commissioner of the District and in that capacity he has to perform many functions which are outside the purview of section 10 of the Criminal Procedure Code. I am, 'therefore satisfied that in the present case the order of the. District Magistrate does not come within the proceedings of a Criminal Court. 1914 Criminal Law journal 668 did not discuss this aspect of the proposition; and I am, therefore, inclined to follow the more elaborate and 'up‑to‑date judgment of the Division Bench of the Calcutta High Court as reported in 1940 Cal.

30. My views are that until the following requirements are not fulfilled the order is not a judicial order and it cannot be revised by the High Court udder section 438, Criminal Procedure Code. (1) The order must be passed in the course of proceedings by an inferior criminal Court and, (2) the order must be enforceable in the sense that penalty could be exacted in the event of its disobedience. Since the present order does not satisfy the above‑mentioned conditions' it is no order and cannot be revised. In' brief the order of the District Magistrate is only a pious advice, Hence, I dismiss the petition. Announced. A.H. Petitions dismissed