In Re: D.V. Belvi - Court Judgment

Excerpt:
criminal procedure code (act v of 1898), section 144-order-judicial order-administrative order-evidence to show cause against order-duty to receive evidence-wide order.; the district magistrate of belgaum promulgated an order under section 144 of the criminal procedure code directing 'all members of the public of belgaum city and cantonment to abstain from performing and participating in...(prabhat pheris or) morning rounds.' subsequently, when some members of the public offered under section 144(5) to give evidence that the prabhat pheris were harmless, the magistrate declined to hear the evidence. on revision:-; (1) that the order passed by the district magistrate under section 144 of the criminal procedure code was judicial and not administrative;; (2) that it was, therefore, incumbent on the magistrate to keep an open mind after passing the order and to record not necessarily the whole but at least a reasonable portion of the evidence essential for the judicial determination of the objections under section 144(5) of the code; ; (3) that the order having been addressed to the public should be limited, under section 144(3), to the public when frequenting or visiting a particular place. - maharashtra scheduled castes, scheduled tribes, de-notified tribes (vimukta jatis), nomadic tribes, other backward classes and special backward category (regulation of issuance and verification of) caste certificate act (23 of 2001), sections 6 & 10: [s.b. mhase, a.p. deshpande & p.b. varale, jj] caste certificate petitioner seeking appointment against the post reserved for member of schedule tribe his caste certificate was invalidated subsequently held, his appointment would not be protected. the observations/directions issued by supreme court in para 36 of judgment in the case of state v millind reported in 2001 91) mah. lj sc 1 is not the law declared by supreme court under article 141 of the constitution of india. said observations/directions are issued in exercise of powers under article 142 of the constitution and also have no application to the cases relating to appointments and are restricted to the cases relating to admissions. the protection, if any, to be granted in the fact and circumstances of case would depend upon exercise of discretion by supreme court under article 142 of the constitution. said powers under article 142 of constitution is not available to the high court. hence no protection can be granted by high court even in cases relating to admissions. - ) 7. on these grounds the petition must, in our opinion, be allowed and the order of the district magistrate set aside as being bad in law for the reasons stated above.madgavkar, j.1. this is an application in revision against an order under section 144 of the criminal procedure code passed by the district magistrate, belgaum, on december 11, 1930, forbidding prabhat pheris in the city and cantonment of belgaum as creating a nuisance and inconvenience and creating conditions favourable to the disturbance of public tranquillity. the period of the order was two months. the order has, therefore, expired, but we have allowed the application to be argued on the merits, as it is represented to us that a certain number of persons have been convicted and the prosecution of others is contemplated for disobeying the order.2. the two grounds on which the order is challenged are, firstly, that the order is too wide, and secondly, that evidence tendered by the petitioners was not allowed to be adduced by the learned district magistrate.3. it is contended for the crown that the order is an administrative order, the recording of evidence was not absolutely necessary and that the order was implicitly confined to the streets of belgaum.4. the weight of authority is in favour of the view that such orders are judicial and not administrative. the question has been set at rest in cases of this court such as queen-empress v. lakhmidas makandas ilr (1889) 14 bom. 165, emperor v. bhagubhai : (1914)16bomlr684 , and emperor v. ganesh mavlankar (1930) 33 bom. l.r. 59, and by the madras high court in queen-empress v. tirunarasimha chari ilr (1895) mad. 18 and muthuswami v. thangammal ayiyar ilr (1929) mad. 320.5. if the order is judicial, the magistrate must keep an open mind and record not necessarily the whole but at least a reasonable portion of the evidence essential for the judicial determination of the objections rather than say, as he apparently does here, that his opinion could not be changed by any such evidence and refuse to record any evidence.6. we are also of opinion that the order being addressed to the public generally must be limited under section 144(3) to the public when frequenting or visiting a particular place. to argue that though no such particular place is specified, all the streets in the city and cantonment of belgaum are implied, would appear to defeat the objects of the section, prohibiting, as it does, the performance of acts, which would otherwise be lawful. this has been so held by this court in the three bombay cases cited above. it has also been considered in dagdu tatya shimpi v. emperor (1929) criminal revision no. 162 of 1929, decided by patkar and wild jj., on juen 13, 1929 (bom. unrep.)7. on these grounds the petition must, in our opinion, be allowed and the order of the district magistrate set aside as being bad in law for the reasons stated above.