HARIHAR OJHA Vs. LAXMI JENA

JUDGEMENT

(1.) THIS revision arises under the following circumstances:

(2.) A case under Section 20 of the Cattle Trespass Act was transferred by the Subdivisional Magistrate, of Anandpur, to the file of Shri D. P. Sharma, Munsif-Magistrate Anandpur, for hearing. That Magistrate, on 24-11-1955 returned the case to the Subdivisional Magistrate, observing that in view of the decision of a single Judge of this Court, reported in Padma Charan Behera v. Rangadhar Das ILR 1950 Cut 149: (AIR 1951 Orissa 40) he had no jurisdiction to try that case. Thereupon the Subdivisional Magistrate sent it back to him with the following note: "the relevant ruling reported in ILR 1950 Cut 149: (AIR 1951 Orissa 40) is seen. Attention of the trying court is drawn to the communication from the Board of Revenue in their letter No. 351 (6) Genl. 11-29/55, dated 19-1-1955, forwarded by the Additional District Magistrate Keonjhar in his memo No. 1/12/55-1904 (3) dated 8-2-1955, in which the opinion of the Legal Remembrancer is given. It is evident from the instruction that no special authorisation is necessary to empower Magistrate to take cognizance under Section 20 of the Cattle Trespass Act. As such, the transfer of the case does not appear to be irregular. If the matter is challenged, it is open to the parties concerned to proceed according to law. I therefore do not see any reason for withdrawal of the case. The hearing may continue. Sd. B. M. Ghose Subdivisional Magistrate, Anandapur 26-11-55. On receipt of this note the Munsif Magistrate thought that there was some conflict between the principle laid down in the decision reported in ILR 1950 Cut 149: (AIR 1951 Orissa 40) and the instructions given to the District Magistrate, Keonjhar, by the Board of Revenue in their letter quoted above, and hence referred the matter to this court under Section 432, Cr. P. C.

(3.) STRICTLY speaking, a reference under Section 432 Cr. P. C. will not lie in a matter of this type, because that Section in terms applies only where there is a question regarding the validity of an Act, Ordinance, or Regulation. Here, there is no controversy about the validity of any provision of the Cattle Trespass Act, or of any provision of the Criminal Procedure Code. But as the matter has been brought to our notice we decided to exercise our jurisdiction under Section 439 Cr. P. C. for the purpose of examining the correctness of the decision in ILR 1950 Cut 149: (AIR 1951 Orissa 40 ).