V B DMONTE Vs. BANDRA BOROUGH MUNICIPALITY

JUDGEMENT

(1.) THE question that arises for the determination of this Full Bench is whether an application in revision made against an order of a Magistrate under Section 110, Bombay Municipal Boroughs Act, XVIII [18] of 1925, lies on the civil or criminal aide of this Court?

(2.) THE Bombay Municipal Boroughs Act constitutes a special appellate Court in respect of the decisions given under Section 104 of that Act; and these appellate Courts, as far as Greater Bombay is concerned, are Magistrates or Benches of Magistrates to be designated by the Chief Presidency Magistrate, and the decisions of the appellate authority under Section 110 of the Act are made subject to revision by the Courts to which appeals against their decisions ordinarily lie. Now the contention put forward is that inasmuch as the decision is given by a Magistrate under Section 110 and an appeal from the Magistrate's decision lies to the High Court on its criminal side, the order of the Magistrate should be revised by the High Court on its criminal side and not on its civil side. It is further urged that a Magistrate's Court is a subordinate criminal Court within the meaning of Section 435, Criminal P. C. , and therefore, a revision application against his decision would lie under that section.

(3.) THE only decision to which our attention has been drawn, which seems to take a contrary view, is one reported in Emperor v. Devappa Ramappa, 43 Bom. 607 : (A. I. R. (6) 1919 Bom. 158 : 20 Cr. L. J. 316 ). In that case a Magistrate was dealing with a matter under the Workmen's Breach of Contract Act, 1859; and a Division Bench consisting of Heaton and Pratt JJ. took the view that a revisional application against his decision lay under Sections 435 and 439, Criminal P. C. , and the test that the Bench applied was not the nature of the proceedings held by the Court, but the nature of the Court in which the proceedings were held; and according to these learned Judges as the Court in which the proceedings were held was a criminal Court and an inferior criminal Court, the High Court had power of revision under Section 435, Criminal P. C. Now, with great respect to the learned Judges who decided this case, this view seems to be contrary to the view taken in the earlier decision, to which I have just drawn attention, In re Dalsukhram, 9 Bom. L. R. 1347: (6 Cr. L. J. 425) and this decision was not referred to or considered. This case viz , Emperor v. Devappa Ramappa, 43 Bom 607 : (A. I. R. (6) 1919 Bom. 158 : 20 Cr. L. J. 316) seems to stand by itself and it has taken a view which has not found favour with the other learned Judges who have considered this question. THE better view seems to be that a criminal Court may be constituted us a Court designata and civil jurisdiction may be conferred upon that Court. If a criminal Court exercises that jurisdiction, then it is not necessarily an inferior criminal Court within the meaning of the Criminal Procedure Code; and if a right of revision is given from a decision of such a Court then that revisional application is civil in its character and not criminal. That is the only limited question that we have to consider in this case. As I stated before, we are not considering whether a revisional application lies under Section 435, Criminal P. C. , or under Section 115, Civil P. C. All that we are considering is whether a special jurisdiction conferred upon us is of a civil or of a criminal character; and on that question there can be no dispute that it is of a civil nature.