MAHOMED MUSTAFA ROWTHER Vs. SHANMUGA THEVAN

JUDGEMENT

(1.) THE accused are alleged to have cub open the bund of a tank belonging to a mosque of which the complainant is the trustee. THE Stationary Sub-Magistrate of Tinnevelly found the accused guilty and passed a sentence of fine. An appeal was filed before the District Magistrate and he transferred it to the Joint Magistrate of Shermadevi. He reversed the conviction and this criminal revision case has been filed by the complainant. THE chief ground on which the order of acquittal is attacked is that the notice mentioned in Section 422 of the Criminal Procedure Code was not served on the officer mentioned in that section. Notice was ordered to the complainant but for some reason or other it was not served upon him. No notice was ordered to the District Magistrate. Section 422 provides that notice shall be given to such officer as the local Government may appoint in that behalf and under Rule 60 of the Criminal Rules of Practice, the officer appointed is the District Magistrate. I am not prepared to accept the argument of Mr. Jayarama Aiyar that because the appeal was originally filed in the Court of the District Magistrate himself, the section has no application. THE fact relied on does not relieve the Appellate Court of the duty to give notice and I am satisfied that the action of the Joint Magistrate is not justified. THE omission to give notice has been held in Emperor V/s. Shivalingappa Basappa A.I.R. 1923 Bom. 74, by Shah, Ag. C.J. to amount to an illegality whereas in the case reported in Vellayanambalam v. Solai Servai (1915) 39 Mad. 505, such an omission was treated as a mere irregularity. It is unnecessary to decide which of these two views is correct. THE question to be decided is whether a casa has been made out for interference by the High Court in revision with an order of acquittal. That we have power to interfere is undoubted. But the power should be exercised very sparingly. THE High Court interferes only where exercise of the jurisdiction is urgently demanded in the interests of public justice. Fauzdar Thahur V/s. Kasi Chowdhury (1915) 42 Cal. 612, Vellayanambalam V/s. Solai Servai (1915) 39 Mad. 505, and Sankaralinga Mudaliar V/s. Narayana Mudaliar A.I.R. 1922 Mad. 502. Applying this principle, I have no doubt that the order of acquittal must stand. THE dispute, it will be seen, is essentially one of a civil nature. THE site of the bund is claimed by the accused as their property while the complainant says it is his. I am not, therefore, prepared to interfere in revision and the revision case is accordingly dismissed.