PALANI CHETTY Vs. RATHINA CHETTY

JUDGEMENT

(1.) This is a dispute about the possession of a Bhajana Mattam. The Sub-Divisional Magistrate has passed an order under Section 145, Cr.P.C. to the effect that the 1st defendant is in possession and shall remain in possession till evicted in due course of law. The petitioners have filed this Revision Petition under Sections 435 and 439, Cr.P.C. and Section 15 of the Charter Act.

(2.) As regards Sections 435 and 439 Cr.P.C., they are clearly not applicable (See Clause (3) of Section 435)

(3.) Coming to Section 15 of the Charter Act, there are no doubt observations in the case, Kamal Kutty v. Udayavarma Raja Valia Raja (1912) M.W.N. 1154 at p. 1159. s.c. 23 M.L.J. 490 to the effect that "it has never been customary to interfere" under Section 15 of the Charter Act " except where it can be said that the Magistrate s order was passed without jurisdiction." If I may say so with respect, that custom or practice is a very wholesome custom which should not be lightly departed from, especially in cases of orders under Section 145 Cr. P.C., with respect to which the Indian Legislature has indicated its view that it is inadvisable to interfere in revision under Sections 435 and 439, Cr.P.C., I do not think that the case in Kamal Kutty v. Udayavarma Raja Valia Raja (1912) M.W.N. 1154 at p. 1159. s.c. 23 M.L.J. 490 decides that this Court has no power or jurisdiction to interfere under Section 15 of the Charter Act unless the Magistrate had no jurisdiction to pass the order sought to be revised. The learned Judges, no doubt, refer to Bhaskari Kasavarajudu v. Bhasharam Ghalapatirajudu (1908) I.L.R. 31 M. 318 where there is an observation that "The Magistrate had jurisdiction to act under Section 145 Cr. P.C. and this Court has no jurisdiction to interfere." But the report in Bhaskari Kasavarajudu v. Bhaskaram Ghalapatirajudu (1908) I.L.R. 31 M. 318 shows (see footnote at page 318) that the petition in revision in that case was filed only under Sections 435 and 439 Cr. P.C., (and not under the Charter Act also) and the High Court had therefore no jurisdiction to interfere under those Sections of the Criminal Procedure Code.