SUDALAIMUTHU CHETTIAR Vs. ENAN SAMBAN

JUDGEMENT

(1.) The facts of the case are set out in my learned colleague s judgment. The points for consideration are. (1) whether the order of Tyabji, J., was correct; (2) if not, what action should be taken by this Court in the question of revising the order of the Sub-Divisional Magistrate.

(2.) On the first point, I also think that Section 439, Code of Criminal Procedure, even supposing that it is applicable to tills case, does not give this Court power to call for a finding when exercising its powers of revision, although it does give power to call for additional evidence upon which this Court can itself come to a conclusion. I think, therefore, that the learned Judge s order, which apparently was based solely upon the finding submitted by the Sub-Divisional Magistrate, was not correct. The additional evidence must be weighed by the Court of Revision, and its decision based upon a consideration thereof. I agree, therefore, that the order appealed against cannot be supported.

(3.) In this view it is necessary to consider the second point and determine what action is to be taken on the revision petition. In Kamal Kutty v. Udaya Varma Rajavalia Raja of Chirakal 17 Ind. Cas. 65 : 36 M. 275 : 12 M.L.T. 49 : 23 M.L.J. 499 : (1912) M.W.N. 1154 : 13 Cr. L.J. 753. Ayling and Napier, JJ., have held in a carefully considered judgment that this Court has no power under Section 439, Code of Criminal Procedure, to revise proceedings under Chapter XII of that Code, and support their conclusion by a consideration of the various authorities. Proceedings under Chapter XII are of a special nature and are such that the Magistracy may well be allowed greater liberty in carrying out those provisions than they are allowed in trying ordinary crime. The provisions of the Chapter are concerned with disputes relating to immoveable property which are likely to cause a breach of the peace, and give Magistrates power to deal with matters of a quasi-civil nature, because upon the Magistracy and Police is thrown the burden of maintaining the public peace. In this view I think it undesireable that such orders should be interfered with in revision, unless they are made without jurisdiction or are obviously unreasonable or unjust. I can, therefore, see no reason to differ from the conclusion arrived at in Kamal Kutty v. Udayavarma Raja Valia Raja of Chirakal 17 Ind. Cas. 65 : 36 M. 275 : 12 M.L.T. 49 : 23 M.L.J. 499 : (1912) M.W.N. 1154 : 13 Cr. L.J. 753, which is also the view of the other High Courts.