1. In this case the names of the Petitioners were entered ina register made in accordance with the provisions of sec. 5 of the CriminalTribes Act and on the register being lodged with the Superintendent of Policean application was made to the Magistrate to the effect that the Petitionersnames should be removed from the register. The Additional District Magistratethereupon made an enquiry and submitted a report to the District Magistrate;and the latter on a consideration of that report rejected the petition. Againstthis order upon an application by the petitioner a Rule was issued on theDistrict Magistrate calling upon him to show cause why that order should not beset aside and the learned Vakil has in support of the Rule urged that we shoulddirect the District Magistrate to make an enquiry into the facts alleged by thePetitioners in support of the application for the removal of their names fromthe register. The first question that arises for our consideration is thequestion of the jurisdiction of this Court to interfere with such an order.Having considered the provisions of the Act it seems to us that the DistrictMagistrate in granting or refusing an application to take the name of a personout of the register does not perform any judicial functions, that his functionsare administrative and that upon this view of the case this Court is notentitled to interfere with the order complained of.

2. In support of the contention that this Court hasjurisdiction to deal with the order, reliance has been placed on a decision ofthis Court in the case of Rajani Khemtawalli v. The King-Emperor I. L. R. Cal.287 : 14 C. W. N. 404 (1910). That case deals with an order passed under theEastern Bengal and Assam Disorderly Houses Act, an Act to provide for thediscontinuance of brothels and disorderly houses in certain localities inEastern Bengal and Assam. The provisions of that Act are very different fromthe provisions of the Criminal Tribes Act. That Act gives jurisdiction to aMagistrate of the first class to order an owner, tenant, manager or occupier todiscontinue the use of any house as brothel. "A Magistrate of the firstclass itself signifies a Magistrate exercising certain judicial powers, and isa Criminal Court within the meaning of sec. 6, Criminal Procedure Code. In thiscase power is given to the District Magistrate who has executive as well asjudicial functions to discharge. That case, therefore, is not, in our opinion,sufficient to show that this Court has jurisdiction to deal with an order ofthis kind. The learned Vakil for the Petitioner has also relied on theprovisions of sec. 28 of the Criminal Tribes Act which lays down that certainorders passed under the Act cannot be questioned by a Court of justice. It hasbeen contended that the present is not one of the orders so excepted. That isno doubt correct. But the fact that the legislature expressly excepted certainorders from the jurisdiction of Courts of justice does not by necessaryimplication make all other orders subject to such jurisdiction.

3. In support of the opposite contention the Deputy LegalRemembrancer has relied on the case of In the matter of the petition of RohomanSirkar (1872) 10 B. L. R. App. 4. That case seems to us to apply more directlyto the question under our consideration than the case relied on by the otherside. We are, therefore, of opinion that the Magistrate in making the order didnot act as a Court and that this Court has no jurisdiction to interfere withthat order.

4. But apart from this it seems to us that the Magistrate isnowhere required by law to make any enquiry. The matter is left absolutely tohis discretion. Sec. 8 of the Act says : " Any person deeming himselfaggrieved by any entry made, or proposed to be made, in such register eitherwhen the register is first made or subsequently, may complain to the DistrictMagistrate against such entry and the Magistrate shall retain such personsname on the register or enter it therein or erase it therefrom, as he may seefit." It does not appear that the law requires that the Magistrate shouldenter into any enquiry and the fact that he has not made any enquiry himself isnot fatal to the validity of the order. There was an enquiry by the AdditionalMagistrate and on the authority of that enquiry the Magistrate rejected the application.It is true that that report of the Additional Magistrate does not disclosematerials which in a Court of law would have been considered sufficient for anorder refusing the removal of the Petitioners names. But we do not think thatwe can go behind the order.

5. The Rule is accordingly discharged. Revision Cases Nos.789, 790 of 1919. Our judgment in No. 791 will govern these two cases also andthe Rules issued in these cases are also discharged.

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Hasan Ali Bepari and Ors. vs. The King-Emperor (08.11.1919 -CALHC)