SURYANARAYANA ROW, BALA RAMAYYA Vs. EMPEROR

JUDGEMENT

(1.) In Criminal Revision Cases Nos. 34 and 35 of 1905. - The material facts bearing upon those revision cases are shortly as follow: Bala Ramayya, the petitioner in Criminal Revision Case No. 35 of 1905, had been convicted on a charge of theft and sentenced to pay a fine of Rs. 20 which he paid (see Criminal Revision Case No. 36 of 1905). He preferred an appeal against that decision which was heard by the Deputy Magistrate Mr. Nagesa Rao in July 1904. The Deputy Magistrate directed the Sub-Magistrate who tried the case in the first instance to record further evidence. While the matter was thus pending a complaint of bribery in conception with the theft case made by Bala Ramayya against the Sub- Magistrate to the District Magistrate was being enquired into department ally. Part of the departmental enquiry was being made (by Mr. Nagesa Rao. On the 6th October Mr. Nagesa Rao summoned Bala Ramayya to appear before him on the 19 idem in connection with the departmental enquiry. Bala Ramayya did not appear, and Mr. Nagosa Rao thereupon issued a warrant for his arrest. The warrant was not executed as Bala Ramayya Was reported to be not forthcoming. On the 3 December 1904 Bala Ramayya came to the Court of the Deputy Magistrate on some other business. Then Mr. Nagesa Rao directed him to execute two recognizances and pending their execution he was detained by the Deputy Magistrates peon. Ono of the recognizances was for Bala Ramayya appearing before the Sub-Magistrate on the 12 in connection with the Additional evidence ordered to be taken, and the other for his appearance before Mr. Nagesa Rao himself on the 13 idem. Bala Ramayya at first refused to execute these recognizances protesting that he should not be called upon to do so and in support of his objection he got the petitioners in Criminal Revision Case No. 34 of 1905, on a High Court Vakil and the other a First-grade Pleader, to present a petition in which it was prayed that Bala Ramayya might be released without any security or recognizance being taken from him. As Mr. Nagesa Rao had, before this petition was presented, left the Court-house, his work in Court being over, and gone to his residence, the petition was handed to Mr. Nagesa Rao there. As in spite of the petition recognizances were insisted on Bala Ramayya executed them and thereupon these same vakils presented a further petition to Mr. Nagesa Rao (also in his house) in which they repeated their objections and prayed that the security and recognizances taken should be cancelled and Bala Ramayya released. This request was not compiled with. With reference to paragraph 6 of the petition which runs as follows: The petitioner believes that this Court namely M.R. Ry. P. Nagesa Rao Pantulu Garu is actuated by malice pure and simple against this petitioner in arresting him and detaining him unlawfully in custody from about 11-30 A.M. till about 4-30 P.M. "this day." Mr. Nagesa Rao directed (purporting to act under Section 476 of the Criminal Procedure Code) Bala Ramayya's two vakils to be prosecuted before the Divisional Magistrate for an offence under Section 228 of the Indian Penal Code, viz., intentionally offering an insult to a public servant whilst such public servant was sitting in a stage of a judicial proceeding and Bala Ramayya for abetting them in committing this offence. The Public Prosecutor took the preliminary objection that these revision petitions did not lie with reference to the Full Bench ruling in Eranholi Athan V/s. King Emperor I.L.R. 26 Mad. 98. We overrule the objection inasmuch as in our opinion Mr. Nagesa Rao was acting entirely without jurisdiction in the matter. Now as to the departmental enquiry he was holding it was purely an executive matter. Our attention has not been drawn to any provision of law empowering Mr. Nagesa Rao to compel the attendance of Bala Ramayya before him in connection with the enquiry. Of course if was not a case to which the Act regarding the issue of Revenue Summonses Madras Act III of 1869 applied and it follows that the issue of a warrant for Bala Ramayya's non-attendance in pursuance of the summons was a void proceeding. As regards also the matter of further evidence directed to betaken before the Sub-Magistrate it was not competent to Mr. Nagesa Rao to compel the attendance of Bala Ramayya either before the Sub-Magistrate or before himself. As we observed in Criminal Revision Case No. 36 of 1905 it was for Bala Ramayya, if he chose to appear at the enquiry or not. It is to be remembered that he had been sentenced to pay a fine and the fine had been paid. The pendency of an appeal preferred by him would not give any Court authority or power to arrest him. The only result of the appeal could be either the reversal or confirmation of the sentence already passed. There was no question of enhancement of sentence. Of course to warrant an order under Section 476 of the Criminal Procedure Code directing a person to be prosecuted the offence stated to have been committed by him should have been committed before the Court in the course of a judicial proceeding or should have been brought under its notice in the course of such a proceeding. Neither is the case here. For the presentation of the petition in question was in regard to and in the course of the detention of Bala Ramayya and the taking of recognizances from him both of which were, as shown above, absolutely illegal acts.

(2.) The Full Bench ruling relied on by the Public Prosecutor cannot possibly be held to apply to a case like the present. It is equally clear that Mr. Nagesa Rao was not at the time the petition was handed to him ft public servant sitting in any stage of a judicial proceeding and this the Public Prosecutor conceded.

(3.) The order of Mr. Nagesa Rao directing the prosecution of the Pleaders and Bala Ramayya is hereby set aside.