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M.R. Ry. Vellanki Srinivasa Jagannatha Rao Bahadur Garu Vs. M.R. Ry. Gadicherla Venkta Gopalakrishna Rao Bahadur, Zemindar of Rajupeta - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported in(1919)37MLJ589
AppellantM.R. Ry. Vellanki Srinivasa Jagannatha Rao Bahadur Garu
RespondentM.R. Ry. Gadicherla Venkta Gopalakrishna Rao Bahadur, Zemindar of Rajupeta
Cases ReferredArumuga Goundan v. Venkatasubbier I.L.R.
Excerpt:
.....subordinate magistrate and not by himself is irregular, i am clearly of opinion that this does not affect his jurisdiction or warrant the interference of this court in revision. 499. the judgment in that case (to which i was a party) says at page 286 :the essential requisite to give a magistrate jurisdiction under section 145 criminal procedure code, is that he must be satisfied from information of some sort that a dispute exists likely to cause a breach of the peace concerning land or water or the boundaries thereof in his jurisdiction. once he is so satisfied, his jurisdiction is complete and his subsequent action must be considered in relation to procedure, not jurisdiction......in this case the sub-divisional magistrate passed a preliminary order under section 145(1) of the criminal procedure code. he then passed a proceeding directing the sub-magistrate of tiruvuru to hold a local enquiry, record evidence on both sides as to possession and submit his report with the records. the sub-magistrate examined 24 witnesses, exhibited a number of documents and submitted his report with the records. the sub-divisional magistrate examined 8 more witnesses himself and then passed orders on all the evidence thus recorded by himself and the sub-magistrate, declaring one party to be in possession.2. it is argued (1) that the sub-divisional magistrate's action in directing the sub-magistrate to take evidence was not authorised by section 148, and that he was not entitled to.....
Judgment:
ORDER

Ayling, J.

1. In this case the Sub-Divisional Magistrate passed a preliminary order under Section 145(1) of the Criminal Procedure Code. He then passed a proceeding directing the Sub-Magistrate of Tiruvuru to hold a local enquiry, record evidence on both sides as to possession and submit his report with the records. The Sub-Magistrate examined 24 witnesses, exhibited a number of documents and submitted his report with the records. The Sub-Divisional Magistrate examined 8 more witnesses himself and then passed orders on all the evidence thus recorded by himself and the Sub-Magistrate, declaring one party to be in possession.

2. It is argued (1) that the Sub-Divisional Magistrate's action in directing the Sub-Magistrate to take evidence was not authorised by Section 148, and that he was not entitled to consider the evidence so recorded and (2) that his action rendered the final order passed by him void, as being without jurisdiction.

3. For both propositions reliance is placed on the judgment of Wallis, J., in Arumuga Goundan v. Venkata Subbien I.L.R. (1907) Mad. 82 which certainly seems to support them.

4. The true scope of Section 148 of the Criminal Procedure Code seems to me to be a very doubtful matter and if it were necessary for the purpose of this case to determine it, I should feel constrained to refer the case for the decision of a Divisional Bench. The question does not appear to have been seriously argued before the learned judge in Arumuga Goundan v. Venkata Subbier I.L.R. (1907) Mad. 82 and he contents himself with quoting three earlier rulings In re Baikant Kumar (1878) 3 Cal. L.R.134 Hanumantappa v. Hussain Sahib alias Aiyah II Weir 118 & II Weir 97. In the former case Prinsep, J., certainly says that the local, enquiry ' should be restricted solely to some question relating to the feature of property about which the dispute has arisen, and that it should not be directed to any matter which can be proved before the Magistrate by oral evidence such as the question of actual possession.' This dictum seems to entirely ignore the very wide definition of ' inquiry' in Section 4(k) of the Criminal Procedure Code : and I may add that if it were the intention of the legislature to make the enquiry a mere ' inspection' as the learned Judge seems to think, it would have been quite easy to say so. The two Madras cases merely lay down that it is not open to the Sub-Divisional Magistrate to depute the. whole investigation to the Sub-Magistrate and to decline to receive any evidence himself as he is bound to do under Section 145(4).

5. But assuming that the Sub-Divisional Magistrate's action in proceeding partially on evidence recorded under his order by a Subordinate Magistrate and not by himself is irregular, I am clearly of opinion that this does not affect his jurisdiction or warrant the interference of this Court in revision. The whole question of the circumstances in which this Court will interfere in revision with orders under Section 145, Criminal Procedure Code has been considered in Kamal Kutty v. Udayarama Rajah Valia Raja of Chirakkal I.L.R. (1912) Mad. 275 : 23 M.L.J. 499. The judgment in that case (to which I was a party) says at page 286 :-' The essential requisite to give a Magistrate jurisdiction under Section 145 Criminal Procedure Code, is that he must be satisfied from information of some sort that a dispute exists likely to cause a breach of the peace concerning land or water or the boundaries thereof in his jurisdiction. Once he is so satisfied, his jurisdiction is complete and his subsequent action must be considered in relation to procedure, not jurisdiction.' This ruling, so far as I am aware has not been subsequently questioned and with all respect to the view expressed in Arumuga Goundan v. Venkatasubbier I.L.R. (1907) Mad 82 I must follow it, especially as I see no reason to alter my opinion.

6. I must therefore dismiss the present revision petition.


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