1. The applicant Shamrao of Sirsoli, Akot taluq, Akola district, had filed an application under sa. 107 and 145, Criminal P. 0., against the non-applicant Mahadeo and others in the Court of the Sub-Divisional Magistrate Akot, who, on 14th September 1946, passed a preliminary order under Section 145 with respect to fields survey Nos. 96/1 and 96/3 situate in the aforesaid village Sirsoli. After it had been pointed out to him that the dispute actually related only to field survey No. 9C/l,ke in the order-sheet, dated 26th September 1946, noted that he would have no jurisdiction over that portion of survey no. 98 which was not in dispute and he also made it clear that the only crop liable to be sold by the Court would be that from the disputed portion of that survey number.
2. Subsequently, according to Shamrao, Mahadeo, in spite of the order of attachment, had picked and removed cotton from the land in question; and the Sub-Divisional Magistrate, after due enquiry, filed on 19th March 1947 a complaint against him under 8.188, Penal Code. Mabadeo's application for withdrawal of the complaint was rejected by the District Magistrate; and the Sessions Judge, Akola, declined to interfere with the order of the District Magistrate.
3. Thereafter, Mahadeo again moved the District Magistrate after be had been adjudged to be in possession of the disputed area of 1 acre and 8 gunthas; and the District Magistrate, after perusal of the report, dated 9th June 1948, of the Sub-Divisional Magistrate, directed the withdrawal of the complaint under Section 188, Penal Code, on the ground that its prosecution would entail considerable expense and waste of public time. The applicant Shamrao has now come up in revision to this Court.
4. When the District Magistrate passed the order directing the withdrawl of the complaint, he did not, it appears, issue notice to Shamrao and dealt with the matter ex parte. This indicated that he treated the matter as an administrative rather than a judicial matter; but in In re Nagu Servai, : AIR1934Mad473 , in which the nature of a petition filed under Section 195(5).Criminal P. C, had to be considered, it was held that the act of filing a complaint by a Magistrate was a judicial act and that an application to the District Magistrate to have the complaint withdrawn was asking the District Magistrate to exercise his judicial discretion. This rule was followed in Vijayaranga v. Muthuswami : AIR1945Mad58 , and I am in respectful agreement with it.
5. It was, therefore, not open to the District Magistrate to pass the order now challenged without having afforded the other side a chance of having been heard. Moreover, that order by directing the withdrawal of the complaint under Section 188, Penal Code, was tantamount to a review of the order of the Sessions Judge, if not of the District Magistrate's own predecessor, and from this point of view it was not a proper order. It may well be that the order of attachment under Section 145, Criminal P. C., was ultra vires and that Mahadeo had, in fact, removed cotton from land which was subsequently declared to have been in his possession, but these were matters for the Court which had seisin of the case under Section 188, Penal Code.
6. The order of the District Magistrate is accordingly set aside and the case under that section shall now be resumed and disposed of according to law as quickly as possible.