THOMMEN JOSEPH Vs. POULOSE VARKEY

JUDGEMENT

(1.) THIS is a petition for revising an order of the district Magistrate of Trichur which purports to have been passed by him in exercise of his revisional jurisdiction. One Poulose Varkey who is the respondent in this Court filed a complaint, C. C. No. 3227/54, before the Kanayannoor Second Class Magistrate complaining that he had been assaulted and belaboured by certain persons. One of the witnesses cited by him was Victoria, Sister of accused 1, a girl now studying in the school final class. The witness list did not show what matter or point was sought to be proved through this witness. The Magistrate however issued summons to her, but before she received it she filed a petition in Court stating that she did not know anything about the incident and that she had been cited as a witness for being insulted and harassed. The Magistrate thereupon ordered that the examination of the other witnesses will be proceeded with and that she would not be examined for the time being. Subsequently the complainant examined six witnesses and then applied for process again to Victoria. On his application the Magistrate passed an order which reads as follows: "all the eyewitnesses in the case have been examined. The witness cited is to prove a motive. Before allowing the process to be issued in the correct address the witness put in petition to exonerate her from appearing in Court. THIS witness was then exonerated for the time being. At present I do not find any pressing reason to allow summons to be issued for this particular witness. Hence this petition need not be considered before persuing the evidence adduced so far. " Against this order the complainant filed a revision petition before the District Magistrate of Trichur , and the District Magistrate has by his order dated 18. 4. 1956 quashed the sub-Magistrate's order and directed him to issue process to Victoria and examine her as a witness for the prosecution. The present application is to revise the order of the District Magistrate dated 18. 4. 1956.

(2.) THE District Magistrate has acted clearly in excess of his jurisdiction. No doubt under S. 435 of the Code of Criminal Procedure the district Magistrate can call for and examine the record of any proceeding in an inferior criminal court for ascertaining the correctness, legality or even propriety of any finding, sentence or order. But that section empowers him only to suspend the execution of a sentence and release the accused on bail pending the examination of the record and does not empower him to quash the finding, sentence or order. S. 435 reads: "the High Court or any Sessions Judge or District magistrate or any sub-divisional Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court situate within his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court and may, when, calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. " Under S. 436 the District Magistrate is competent to quash an order passed by a subordinate Magistrate dismissing a complaint under S. 203 or Sub-s. 3 of S. 204 or an order discharging an accused. S. 436 reads as follows: "on examining any record under S. 435 or otherwise the High Court or the Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the district Magistrate may himself make, or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under S. 203 or sub-s. (3) of S. 204, or into the case of any person accused of an offence who has been discharged. " This section is confined to cases of dismissal of complaints under S. 203 or sub-s. (3) of S. 204 and of discharge of the accused and does not confer any power on the District magistrate to quash other orders passed by a Sub-Magistrate. Under S. 437 the district Magistrate is competent to order a Sub-Magistrate to commit an accused improperly discharged for trial to the sessions court but that section also confers no jurisdiction on the District Magistrate to interfere in revision with interlocutory or other orders. THE section reads: "when, on examining, the record of any case under s. 435 of otherwise, the Sessions Judge or District Magistrate considers that such case is triable exclusively by the Court of session and that an accused person has been improperly discharged by the inferior court, the Sessions Judge or District Magistrate may cause him to be arrested, and may thereupon, instead of directing a fresh inquiry, order him to be committed for trial upon the matter of which he has been, in the opinion of the Sessions Judge or District Magistrate, improperly discharged. " THE only authority competent to revise other orders, including interlocutory orders, passed by a Sub-Magistrate is the High Court. THE High Court gets that jurisdiction by virtue of S. 439. If in cases not governed by S. 436 and 437 the District Magistrate finds that any order in the proceedings which he has called for examination by virtue of the powers conferred on him under S. 435 is illegal or improper the only course open to him is to make a report to the High Court under S. 438 of the Code of Criminal procedure and leave the matter to be decided by the High Court in exercise of its powers under S. 439. S. 438 (1) reads: "the Sessions Judge or District Magistrate any, if he thinks fit, on examining under S. 435 or otherwise the record of ay proceeding, report for the orders of the High Court the result of such examination, and, when such report contains a recommendation that a sentence be reversed or altered may order that the execution of such sentence be suspended, and, if the accused is in confinement, that he be released on bail or on his own bond. " In a some-what similar case, Moti v. Beni , AIR 1936 Allahabad 852, the Allahabad High court has held that where the District Magistrate decided, upon a consideration of the application and examination of the record, that the order of a special magistrate regarding the custody of a minor girl was unjust, he could only act under S. 438 and had no power to set aside the special Magistrate's order. It has therefore to be held in this case that the District Magistrate's order dated 18. 4. 1956 is without jurisdiction.