An order passed by a Magistrate under S. 247(1) of the Municipalities Act is not an order passed in a proceeding before an inferior criminal Court within the meaning of S. 435 of the Code of Criminal Procedure and, therefore, is not revisable by the High Court under S. 439 of the Code.

DESAI, J. :- This is an application in revision against an order of a Sub-Divisional Magistrate, confirmed by the Sessions Judge, Orai, directing the applicants under S. 247(1), U.P. Municipalities Act to stop using their houses for habitual prostitution. The revision application has been filed under Ss. 435 and 439, Criminal P.C.

When it was put up for disposal before our brother James, a preliminary objection was raised on behalf of the Municipal Board that it was not maintainable. The contention of the Board was that an order passed by a Sub-Divisional Magistrate under S. 247(1) of the Municipalities Act cannot be revised by the High Court under S. 439, Criminal P.C.

2. The High Court is authorised by S. 435(1) of the Code to "call for and examine the record of any proceeding before any inferior criminal Court." Section 439 lays down that in the case of any proceeding the record of which has been called for by itself or which has been reported for orders, the High Court may exercise any of the powers conferred on a Court of appeal by Ss. 423 etc.

Section 247(1), U.P. Municipalities Act is to the effect that "when a Magistrate of the first class receives information" that a house in the vicinity of a place of workshop etc. is used as a brothel or for the purpose of habitual prostitution, "he may summon the owner, tenant ...... to appear before him either in person or by agent; and if satisfied that the house is used as described" above may order such owner, tenant etc. to discontinue such use.

Such action can be taken either on a complaint of the Municipal Board or of three or more persons residing in the immediate vicinity or with the sanction or by the order of the District Magistrate. Section 247(2) lays down that if the person against whom the above order has been passed fails to comply with it within the time allowed, "the Magistrate may impose on him a fine."

3. In Madho Das v. Rex, AIR 1949 All 738

(A) It was held by Seth, J. that an order passed under S. 310(2), U.P. Municipalities Act by a Magistrate directing a person to vacate a house is not an order passed in a proceeding of a criminal Court and cannot be revised by the High Court under S. 439 of the Code. An order passed by a Magistrate under S. 247(1) is analogous to an order passed by a Magistrate under S. 310(2) and there is a good ground for holding that if one order is passed by a Magistrate as a criminal Court, the other also is.

(B) Therefore, on the analogy of the decision in the above case an order passed under S. 247(1) is not an order passed in a proceeding in a criminal Court. Our brother James, however, doubted the correctness of the decision of Seth, J. and, therefore, has referred to us the following two questions :

1. What is a "Criminal court" ?

2. Whether a Magistrate who passes an order under S. 247 (1) or S. 310(2) of the Municipalities Act does so as a "criminal court"?

The question in the present case is simply whether an order passed under S. 247(1) is an order passed in a proceeding before any inferior criminal Court .and with great respect to our brother we shall answer only that question.

Anything we say about an order passed, under S. 310(2) would be simply obiter and not bind any Court. We may also be excused for not entering into a discussion as to what is a criminal Court; what we say on the question whether a Magistrate passing an order under S. 247(1) acts as a criminal Court will be a decision in the case, but what we say on the question whether a Magistrate passing any other order does so as a criminal Court will be obiter.

4. In order to understand what is meant by a "proceeding before any inferior criminal Court" it is necessary to understand the scheme of the Code of Criminal Procedure. The Code is not to affect "any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force" (vide S. 1(2)).

The Code defines "judicial proceeding" (to mean any proceeding in