P L D 1961 (W (PLP)

QADEERUDDIN AHMAD, J.‑--The facts which form the back ground of this application of Mst. Alam Bibi, according to her, are that she is a widow, who has six children, one son and one daughter of whom are married. She was a Lady Vaccinator in the Municipal Committee, to whom some land has been allotted. Some of her neighbours became inimical towards her in connection with the allotment of evacuee property to her, and made a complaint against her, as a result of which action was taken against her under sections 3 and 6 of the Sind Prevention of Prostitution Act, 1951. She was tried by the Resident Magistrate, Mirpurkhas who acquitted her under section 258, Cr. P. C. on the 15th of December, 1958. On the 28th of August, 1959, an order was issued by ' the District Magistrate, Tharparkar under sub‑section (1) of section 13 of the Sind Prevention of Prostitution Act, 1951 requiring her to remove herself from the town of Mirpurkhas by the Mirpurkhas‑Hyderabad Road within fifteen days from the receipt of the notice, and not to frequent the town for a period of one year. On receipt of the notice, she submitted written objections to the District Magistrate, and the execution of the order contained in the notice was stayed on the 28th of September, 1959. The order of stay was, however, vacated on the 19th of November, 1959, after she was heard, and directions were issued that the order be carried out. The applicant then made an application for revision under section 435, Cr. P. C. to the Sessions Judge, Tharparkar at Mirpurkhas. That application was also dismissed on the 6th of August, 1960, on the ground that the Sessions Judge did not have jurisdiction in the matter. She has now made the present application under sections 435, 439 and 561‑A, Cr. P. C. and Clause 21 of the Letters Patent of the High Court of Lahore to challenge the notice dated the 28th of August, 1959, issued by the District Magistrate, Tharparkar, his order dated the 19th of November, 1959 and the order of the Sessions Judge dated the 6th of August, 1960.

2. At the time of the admission of the application counsel for the applicant had attacked the validity of the notice on the ground that it did not comply with the terms of subsection (1) of section 13 of the Sind Prevention of Prostitution Act, 1951 inasmuch as the District Magistrate could require a person to whom the provision applied "not to reside in, use or frequent any street or place specified in the notice" or direct such person "to remove himself or herself from the District or to such place within the District within such time as the District Magistrate may prescribe". The notice, however, contains a direction to the applicant to remove herself from the town of Mirpurkhas by the Mirpurkhas‑Hyderabad Road within 15 days from the receipt of the notice. As the direction given to her was not to leave the District but only to leave the town, it was necessary that it contained a direction that the applicant should remove herself to a specified place. The omission to make that specification, according to counsel, was illegal. Counsel admitted that the freedom given to the applicant to be anywhere she likes within the District if she left the town of Mirpurkhas could be said in a way to her advantage, but the compulsion under which she was smarting by reason of the direction to leave the town where she had lived permanently and the hardship which it entailed was hard enough to force her to attack the legality and the validity of the order. He cited P. T. Chandra v. Emperor (A I R 1942 Lah. 171) in support of the proposition that the authority exercisable by a District Magistrate on the basis of his personal opinion merely was revisable by the High Court and that as such the authority conferred on him by subsection (1) of section 13 of the Sind Prevention of Prostitution Act, 1951 should be taken to have been exercised as an inferior Criminal Court. We admitted the application and stayed the execution of the order contained in the notice.

3. We have heard counsel for the applicant and the Assistant Additional Advocate‑General for the State at some length. Various aspects of the law have been discussed before us. Before examin ing the contentions of the parties it is necessary to set out the provision under which the notice was issued. Subsection (1) of section 13 of the Sind Prevention of Prostitution Act, 1951, is as follows:-- "(1) The District Magistrate may at any time cause a notice to be served upon any person who occupies or manages or acts or assists in the management of or resides in, or uses or frequents, any house, room or place in the District in which the business of a common prostitute is carried on, requiring such person after a date to be mentioned in the notice, which shall not be less than seven days from the date of the notice, not to reside in, use or frequent any street or place specified in the notice, or directing such person after a date to be mentioned and fixed as aforesaid to remove himself or herself from the District or to such place within the District by such route and within such time as the District Magistrate may prescribe." The effect of the notice is not that its recipient be punished straightaway if he or she fails to comply with it, or refuses to act according to it: for the provisions of subsections (2), (3) and (4) of the section are as follows:-- "(2) if any person so directed under subsection (1) fails or refuses to remove himself or herself as directed within the time specified, the District Magistrate may cause such person to be arrested and removed in police custody from the District or to the place prescribed within the District. (3) Any person on whom a notice under this section shall have been served disobeying the requisition therein contained, shall be punished with imprisonment for a term which extend:‑ (a) in the case of a first offence to one month, and (b) in the case of second or subsequent offence, to three months. (4) Whoever, within two years from the date of his removal under the provisions of this section, returns to any place within the District, without the permission in writing of the District Magistrate, shall be punished with imprisonment for a term which may extend to two years or with fine or with both." The scheme of the section, therefore, is that the order contained in the notice lays the foundation for prosecution if it is disobeyed and punishment can be awarded only if an offence is established after a regular trial.

4. The stand of counsel for the applicant is that the notice issued under subsection (1) of section 13 by the District Magistrate, Tharparkar was a proceeding taken by an inferior Criminal Court and that as such it is revisable under section 435 of the Criminal Procedure Code by the High Court or any Sessions Judge; alterna tively, it is revisable by the High Court under section 439 of the Criminal Procedure Code even if it was not a proceeding taken by an inferior Criminal Court. Counsel did not rely on section 561‑A. Cr. P. C. and Clause 21 of the Letters Patent of the High Court of Lahore. On the other hand, the stand of counsel for the State is that is notice issued under section 13 (1) cannot be a proceeding before an inferior Criminal Court and that it is always a purely executive action taken by an officer in exercise of his administrative authorities who happens to be the District Magistrate. Moreover, according to him, section 439 of the Criminal Procedure Code does not confer a wider jurisdiction on the High Court as far as the nature and character of revisable proceedings are concerned. Counsel for the parties was not able to cite any precedent in which revisional jurisdiction of a Sessions Judge or a High Court with reference to subsection (1) of section 13 has been examined. Both counsel, therefore, supported their respective points of view by citing precedents in relation to the provisions of other statutes.

5. There are several judgments in which High Courts have decided that orders made under section 144, Cr. P. C. were revis able under sections 435 and 439, Cr. P. C. Two of such decisions are D. V. Belpi v. Emperor (A I R 1931 Bom. 325) and P. T. Chandra, Editior Tribune v. Emperor (A I R 1942 Lah. 171). We think that orders made under section 144, Cr. P. C. can be said easily to fall within the powers conferred by section 435 and 439 Cr. P. C. because under subsection (1) of section 144, a District Magistrate has to state the material facts for making an order under the section, and any person aggrieved by it can apply under subsection (4) that it should be altered or rescinded: whereupon an opportunity to be given to the applicant to show cause against the order. These proceedings have the character of a judicial proceeding as defined by section 4 (m) of the Criminal Procedure Code, because that definition is inclusive, and not exhaustive. This was however not the reasoning employed ii n, in the Full Bench Judgment of the Lahore High Court because other argument were addressed to the Court in that case. Counsel for the applicant has pressed the reasoning of that judgment into use.

6. The learned Judges who constituted the Full Bench, `namely, Young, C. J. and Bhide and Muhammad Munir, JJ. have held relying on the observations of Bret. L. J. in Ormerod v. Todmorden Mill Co. ((1882) 8 Q B D 664) that the words "in the opinion of a District Magistrate," which occur in subsection (1) of section 144, Criminal Procedure Code, mean "according to the judgment of the Court or a Judge." The opinion of a District Magistrate expressed under section 144, Cr. P. C., therefore, is not absolute and cannot exclude authority of the High Court under the revisional sections of the Criminal Procedure Code. Further: "It has been argued by the learned Advocate‑General that the District Magistrate acting under section 144 is not a Criminal Court. But in this case the District Magistrate undoubtedly has acted as a District Magistrate, and as such he is a Criminal Court. There are many cases under section 144 where considered orders are made by the District Magistrate after evidence has been adduced by the parties. I see no distinction between an order passed after evidence has been taken and an order passed, as in this case, suo moto after considering the material which is within his knowledge:" Bhide, J. has added separately the following observations: "Besides, it does not seem necessary for the purposes of section 439, Cr. P. C. that the District Magistrate should be acting as a `court'. The wording of that section is very wide and covers `any proceedings' the record of which had been called for by the High Court, or which has been reported for orders, or which otherwise comes to its knowledge." With great respect, we are not able to see how the expression `any proceedings' used in section, 439, Cr. P. C. can be treated to include proceedings which are not held by Criminal Courts. If the extended meaning apparently assigned to the expression is accepted to be correct, then it will include Civil and Revenue proceedings and proceedings before statutory tribunals to which the Criminal Procedure Code is not intended to apply. Moreover, section 439, Cr. P. C. is to be read along with section 435, Cr. P. C. A as pointed out in Mariam Bewa v. Merjan Sardar (I L R 47 Cal. 438). They are not unconnected provisions, as held in Kamal Kutty v. Udayavarma Raja Valia Raja of Chirakkal (I L R 36 Mad. 275) because section 435 to 438, Cr. P. C. provide the machinery and section 439 gives the power to dispose of the questions that may arise. There is ample authority for the proposition that revisional powers conferred by section 439, Cr. P. C. are exercisable in relation to the proceedings of inferior Criminal Courts only, and we agree with the view.

7. Counsel for the applicant emphasised the words of the Full Bench that "in this case the District Magistrate has undou btedly acted as a District Magistrate", and contended that it is possible for an officer acting under a statute as a persona designata to act as a Court according to the circumstances of the case. He said that in the present case evidence of witnesses was recorded on oath: therefore, they were judicial proceedings. He supported this proposition by referring to In re Veerappan (A I R 1944 Mad. 37) in which the learned Single Judge has observed as follows:-- "The Sub‑Divisional Magistrate's Court is as inferior Court within the jurisdiction of the Additional District Magistrate of Salem, and there was a judicial enquiry by the Sub‑Divisional Magistrate as defined in section 4 (m), Cr. P. C. as in this case had taken the statement of the witnesses whom he examined on oath." But it appears to us that the emphasis on the circumstances of the cases which were examined by the Full Bench and the learned Single Judge was meant only to point out that there was no doubt that the proceedings which were before the learned Judges were judicial proceedings before inferior Criminal Courts. It is not correct to argue on the basis of those observations that the proposition was that a proceeding of non judicial character B prescribed by a statutory provision can assume judicial character merely because the method adopted in a given case is that of a judicial proceeding. This is clear from the negative propositions laid down by the Privy Council in Shell Co. of Australia Ltd. v. Federal Commission of Taxation (1931 A C 275 at page 297). It is similarly erroneous to argue on the basis of the observations of the Full Bench that the words "in the opinion of a District Magistrate" mean that the opinion of a District Magistrate when formed by him as a persona designata, and not as a judicial officer, can also be taken to be the judgment of a Court. What was pointed out was that his discretion alone to make an order did not oust revisional jurisdic tion of the High Court.

8. The real point for consideration in deciding whether an order issued by a judicial officer as a persona designata is revis able or not, is whether the order was made by him as an inferior Criminal Court or not. Duties of executive or administrative character can be entrusted to judicial officers by statutes, but the acts done by them in their administrative or executive capacity do not for that reason alone become judicial acts or judicial proceedings of inferior Criminal Courts. The crux of the problem, therefore, is to distinguish between the two capacities. For instance, there are several sections in the Bombay District Police Act, 1890, like section 39‑A relating to licensing and controlling places of public amusement: section 41 relating to discontinuance of brothels; section 43 relating to prevention of riots and distur bances of peace: section 44 relating to the maintenance of order at religious ceremonials, for the purposes of which powers are conferred on Magistrates, but those powers are of executive or administrative character. They are not meant to be exercised by the Magistrates as inferior Criminal Courts: nor do the acts done by them in the exercise of those powers constitute judicial proceedings. Several judgments were cited by counsel for the State to support this point of view. Some of them are: (1) Dharmibai v. The Crown 11 S L R 113; (2) Statan v. The Crown 15 S L R 126; (3) In re: Pandurang Shidrao 12 Bom. L R 1029; and (4) Manghanmal Gain Chand v. Emperor A I R 1939 Sind

340. Counsel for the State has also cited Khwaja Chulam Said‑ud‑Din v. Emperor (A I R 1941 Lah. 71) in which an order issued by a District Magistrate under section 3, Sarais Act, was the subject of a few revision applications. From it we may quote the following passage with advantage: "No doubt the word 'proceeding' in section 439 is not further qualified as it is in section 435, but on a well established principle of the interpretation of statutes this word can only be interpreted in the manner in which it is used in the foregoing sections and there, as stated above, it is confined to the proceed ing before any inferior criminal Court. The District Magistrate as the Chief Officer charged with the executive administration of a District in criminal matters can under no stretch of language be treated as a Court. His functions as an executive officer are poles as under from his functions as a judicial officer, and it is only in his judicial capacity that he is in our view' subject to the revisional jurisdiction of this Court."

9. We may here refer to Rajani Khemlawali v. Emperor (11 Cr. L J 112) in which an order made under the Eastern Bengal and Assam Disorderly Houses Act was sought to be revised by the High Court of Calcutta. The learned Judges came to the conclusion that the First Class Magistrate who issued the order being one of the classes of Criminal Courts created by section 6 of the Criminal Procedure Code could not, merely owing to the provi sions of the Eastern Bengal Act, be deprived of his capacity to act as such and that, therefore, inspite of the Act the High Court had the jurisdiction to revise his order, but the Judges have then pointed out that there was "another difficulty" in the way of exercising that jurisdiction, and have observed as follows:-- "He (the Magistrate) is not acting under the Criminal Procedure Code, but he is in fact performing an administrative and not a judicial duty. If he makes an order under section 3, disobedience to it will be an offence, but proceedings to punish that offence must be taken independently of proceedings under section 2 and 3 and must, of course, be conducted according to the ordinary law. All that is effected by the proceedings under sections 2 and 3 is, therefore, to lay a foundation for a prosecution under section 6, and such proceedings need not and probably cannot be carried on in the manner appropriate to proceedings for the actual prosecution of an offence." They held that administration of oath to witnesses was an error; yet in the last sentence of the judgment they have observed: "The result is that no case has been made out for our interference and the rule is discharged." Counsel has argued that the learned Judges had assumed revisional jurisdiction and discharged the rule on merits in spite of the fact that the order issued by the Magistrate was an executive order, merely on the ground that as a First Class Magistrate he fell within a category of inferior criminal Courts in virtue of section 6 of the Criminal Procedure Code. The proposition of law has not been laid down in the judgment as such and, therefore, we are not prepared to accept the judgment as an authority on this proposition. The distinction drawn by the learned judges between judicial and executive acts and their treatment of the executive character of the order as a 'difficulty' induces us to conclude that the last sentence of the judgment by which the rule was discharged was an additional reason for doing so.

10. A notice issued under subsection (1) of section 13 of the Sind Prevention of Prostitution Act, 1951 is an executive or administrative act and not pronouncement of a Court because, apart from other reasons, it is not final in the sense that E punishment cannot be awarded to the person to whom such a notice is given for disobeying it unless such a person is tried under subsection (3) of section 13 of the Act. As pointed out in Brajanandan Sinha v. Jyoti Narain (AIR 1956 5 C 66), the power to give "definitive judgment which has finality and authoritativeness" are the essential tests of Judicial pronouncement.

11. The trial, if and when it takes place, is bound to be proceeding before an inferior Criminal Court which will attract the revisional jurisdiction conferred on the High Court by the Criminal Procedure Code. This opportunity of ventilating grievances before the trial Court and the High Court does not, according to applicant's counsel, satisfy the cardinal principle of justice because in such a trial the conclusions of fact arrived at by the District Magistrate on the information available to him may not be open to question. Counsel contended that this limitation on the scope of the defence is bound in some cases to violate the principle of autrefoits acquit as in the present case because the fact that the applicant has been once acquitted by a competent Court of the charges brought against her under sections 3 and 6 of the Act may be left entirely unheeded. We do not wish to express our opinion on the scope of the defence that may be open to the applicant at the time of her trial and its effect on the trial but, assuming the fear of counsel to be correct and in deference to his argument, we may point out that his fear merely illustrates the difference in the policies of the law relating to judicial and executive procedures. Executive section can be legally made permissible and administratively it may be advisable in certain circumstances without and irrespective of judicial proof or conviction in a regular trial. If such action is permitted by law it has the sanction of that law; nor can that law be attacked merely on the ground that it creates such a situation unless there is a law of superior sanctity which invalidates it. We feel that counsel's argument could be relevant in relation to the exercise of writ‑jurisdiction but it is irrelevant in the present proceedings because we cannot exercise revisional powers unless relevant provisions of the Criminal Procedure Code authorised us to do so. The relevant provisions, namely sections 435 and 439 of the Criminal Procedure Code, do not help the applicant because the orders questioned before us are not orders of a Court, much less the orders of an inferior criminal Court.

12. We may add that there is a presumption in the argument of applicant's counsel that the trial in which she has been acquitted and her trial under subsection (3) of section 13 of the Act will be found to be based on common facts and charges, in order to make it clear that we express no opinion regarding the soundness or otherwise of this presumption because the argument is irrelevant in these proceedings.

13. Our conclusion is that the notice in question was not issued by the District Magistrate as an inferior criminal Court As such we have no jurisdiction to revise the order contained in it. The rest of the considerations for which counsel has pressed upon as to assume jurisdiction are irrelevant in these proceedings. They may be found to be adequate or not when the occasion arises for examining them. We accordingly discharge the order of stay and reject the application. K. B. A. Petition dismissed.