NARAYANASWAMI VANNIAR Vs. KARUMBAYIRAM PERIYARI

JUDGEMENT

(1.) The petitioner and others were accused before the village panchayat Court, Narayanamangalam, Tanjore District, and convicted of an offence. A revision petition was filed in the Court of the Joint Magistrate, Negapatam, in Crl. M.P. No. 43 of 1932 under Section 76 (9), Madras Village Courts Act. The Court found that the Bench had no legal existence at the time and hence no jurisdiction. It set aside the conviction and directed the fines paid to be refunded. On the same facts an identical complaint was filed before the same panchayat Court in C.C. No. 2 of 1932. The petitioner put in a petition to the Sub. Magistrate, Kodavassal, to stop further proceedings and discharge the accused on the ground that Section 403, Criminal P.C. barred a new trial on the same facts with regard to the same occurrence.

(2.) The Court held that there was no bar and against this order the present revision petition is filed. The argument for the petitioner is that under Section 423(b), Criminal P.C. if a Court does not order a re-trial it amounts to an acquittal. The learned advocate for the petitioner admits that the appellate sections of the Code are not applicable to proceedings under the Panchayat Courts Act the only section of the Criminal Procedure Code that is made applicable being Section 403 and that the order of the Joint Magistrate must be held to have been under the powers of revision conferred by Section 76(8) of the Village Courts Act. But ha argues that a revisional jurisdiction is in its essence appellate and quotes Chappan V/s. Moidin Kutti (1899) 22 Mad. 68 at p. 81 (this case was with reference to Section 622, Civil P.C. of 1882, corresponding to Section 115, Civil P.C. of 1908). He also quotes In the matter of Dijahur Dutt (1879) 4 Cal. 647 where it was held that a Magistrate had no power to remand a criminal case to a Subordinate Magistrate for re-trial after the case has once been dismissed. He also quotes a recent decision by Burn, J., in Chinna Similan V/s. Peria Similan 1933 M.W.N. 224 that in the case of an appeal from an order other than an order of acquittal on conviction the appellate Court has no jurisdiction to order a de novo trial but can only alter or reverse such order and direct the trial Magistrate to write a proper judgment. That case appears to me to have no relevancy whatsoever because the present is a case of setting aside a conviction and the petitioner's own argument is that though the appellate sections of the Code are not applicable the revisional power is the same as the appellate power and if so clearly the joint Magistrate had power on petitioner's own argument to order a re-trial if he had wished to do so.

(3.) For the Crown it is argued that the original trial was a nullity having been held by persons who had no power to do so and fell under Section 530(p), Criminal P.C. Therefore the Joint Magistrate had no power to order a re-trial there having been no trial. For this position there is the direct authority of Abdul Ghani V/s. Emperor (1902) 29 Cal. 412 and Liaket Hussain v. Emperor (1908) 12 C.W.N. 246. In the first of these cases it was held that where a Magistrate who had no jurisdiction had convicted for an offence triable exclusively by Sessions and that where the Sessions Judge, on appeal had merely discharged the accused, there was nothing in law to prevent a Court of competent jurisdiction from instituting fresh proceedings against the accused and committing him. It was further held that inasmuch as Section 423, Criminal P.C. contemplates an order for a retrial by a Court of competent jurisdiction, and the trial had been set aside owing to the Magistrate having had no jurisdiction to hold it, no trial had in fact taken place, so that the Sessions Judge could not possibly have ordered a re-trial.