M V SIROMANI PILLAI Vs. T C BALANTYNE

JUDGEMENT

(1.) This is the second time this case comes up before us in revision. The case arises from a private complaint accusing as many as seventeen persons of the commission of offences punishable under S.380, 341, 395, 451 and 447, I.P.C. It was originally taken cognizance of by the Taluk Second Class Magistrate of Devikulam as P.E. No. 1 of 1124 and at the conclusion of the enquiry he passed orders discharging all the accused persons of having committed any offence in a group or as members of an unlawful assembly, but held that seven among them had to be proceeded against for offences alleged to have been committed by them individually. The complainant took the matter in revision before the District Magistrate, Kottayam, but the learned District Magistrate confirmed the order passed by the subordinate court. In Criminal Revision 97 of 1954 I set aside the two orders and directed the District Magistrate himself to hold further enquiry and dispose of the case according to law. The present revision is directed against the order passed by the District Magistrate (Judicial), Kottayam discharging all the accused persons of the more grave offences for which the complainant sought to make them liable, at the same time holding that the case should be tried by him as a calendar case. The concluding part of his order reads:

(2.) In my previous order I had given sufficient indication that the case should go before a Court of Sessions for trial. A few extracts from that order may usefully be quoted here:

(3.) In the circumstances the present order of the District Magistrate cannot also be sustained. The question then is, what course I should adopt after vacating it; that is, whether I should direct a committal for trial to a competent court or again order further enquiry so that the lower court may of its own make the committal. Mr. K. T. Thomas, learned counsel for the accused raised a doubt whether it was competent for me under S.439, Criminal Procedure Code, to direct the accused persons to be committed for trial. If I understood him rightly, his contention appeared to be that I can only direct a further enquiry under S.436, Criminal Procedure Code. That was what I myself thought on the former occasion and this time I invited counsel to clear the position. The authorities referred to at the bar clearly hold that it is competent to the High Court to direct a subordinate court to commit for trial persons improperly discharged by that or any other subordinate Court. S.423 and S.439, Criminal Procedure Code clearly confer that power on the High Court. As the authorities on the point are uniform I content myself by quoting an extract from the Full Bench decision of the Madras High Court reported in Public Prosecutor v. Ponnuswami Nayak, AIR 1928 Mad. 1267 . This case refers to the decisions of the Allahabad, Bombay and Calcutta High Courts bearing on the question. The relevant portion of the order of the Madras High Court reads: