1. This is a Letters Patent appeal against the decision of the Honourable Mr. Justice Spencer passed on a petition presented under Section 15 of the Charter Act, (Section 107 of the Government of India Act), for the setting aside of an order of the Sub-Divisional Magistrate of Trichinopoly under Section 147 of the Criminal Procedure Code. The learned Judge held that the Sub-Divisional Magistrate's order was not without jurisdiction and declined to interfere.
2. As observed in Kamal Kutty v. Udayavarma Rajah Valia Rajah of Chirakkal I.L.R. (1912) M. 275 it has never been customary to interfere in cases of this sort under Section 15 of the Charter Act, unless the Magistrate's order was passed without jurisdiction; and we have merely to consider whether that was the case with the order before us.
3. The chief ground of attack is that the Magistrate recorded no evidence himself but forwarded the records to a Subordinate Magistrate under Section 148 of the Criminal Procedure Code for trial, enquiry, and report after taking evidence and based his order on the said report and the oral evidence recorded by the Sub-Magistrate.
4. Appellants' first contention is that the term 'local enquiry' in Section 148 of the Criminal Procedure Code means merely ' local inspection ' and that the order directing the Sub-Magistrate to record oral evidence on the spot is ultra vires. The word ' inquiry ' frequently occurs in the Criminal Procedure Code; but nowhere, so far as I know, with this very limited meaning. The main authority for appellants' contention is the opinion of Prinsep, J., in a very old case reported in In the matter of Baikunt Kumar (1878) 3 Cal. L.R. 134 White, J., who sat with him in that case treated the matter as doubtful; but both learned Judges appear to have been of the opinion, that evidence might legally be recorded by a Sub-Magistrate with the assent of parties and that they might even agree to be bound by the result of the inquiry thus held. To what extent Prinsep, J.'s view was shared by the learned Judge in Arumuga Govindan v. Venkcatasubbiar I.L.R. (1907) M. 82, is not clear, but as at present advised I am not prepared to assent to the proposition that the local inquiry authorised by Section 148 is only a local inspection, or that the Sub-Magistrate's report in this case was not admissible in evidence.
5. What seems to be clear is, that whatever the scope of the said inquiry, the receipt of the Sub-Magistrate's report does not absolve the Sub-Divisional Magistrate from the duty imposed on him by Section 145 (4), of receiving any evidence produced before him by the parties, and taking any further evidence he may find necessary. This if I understand it right, is the true meaning of the pronouncement in In the matter of Baikunt Kumar (1878) 3 C.L.R. 134, as well as in Criminal Revision case No. 243 of 1892 of this Court, reported in Hanumanthappa v. Hussain Saheb alias Aiyah (1892) 2 Weir 113 and in Kolha Koer v. Muneswar Tewari I.L.R. (1907) C. 840. In the present case there is nothing to indicate that the parties were desirous of adducing any further evidence before the Sub-Divisional Magistrate, though he gave a hearing to both sides after receipt of the Sub-Magistrate's report. In fact so far as appears, both parties were quite content to abide by the result of the Sub-Magistrate's inquiry, and the Sub-Divisional Magistrate even notes, at the end of paragraph 4 of his order that before him they advanced no arguments against the Sub-Magistrate's finding. The present objection seems to be a pure afterthought, put into the head of the unsuccessful party.
6. Whether in case the Sub-Divisional Magistrate had declined to take evidence tendered before him, this would have amounted to a defect of jurisdiction is a matter we need not decide. The learned Judges in Kolha Koer v. Muneswar Tewari I.L.R. (1907) C. 840 held that it would, or that it was at any rate a matter justifying their interference.
7. That in the absence of such refusal, the order in the present case should be treated as one without jurisdiction, I see no reason to hold and in so far as the decision of the learned Judge in Arumuga Govindan v. Venkata Subbier I.L.R. (1907) M. 82 seems to lay down such a proposition I must most respectfully dissent from it.
8. The second point is that the Magistrate's order contains no finding that the right of way in question was exercised within 3 months before the inquiry. This, as pointed out by Spencer, J. was never raised in the Magistrate's Court, and I think we should decline to make it a ground of interference now.
9. I would dismiss the appeal with costs of the Public Prosecutor.
Seshagiri Aiyar, J.
10. In this case there was a complaint to the Police by the Respondents that their right of way was obstructed by the appellants. The Sub-Divisional Magistrate came to the conclusion that there was a dispute likely to cause a breach of the peace, and directed the parties to put in their statements. Then he went to the locality and after inspecting the disputed pathway directed the Sub-Magistrate to make a local enquiry to record evidence and to report to him under Section 148 of the Code of Criminal Procedure. Witnesses were summoned by the parties for examination before the Sub-Divisional Magistrate. It was apparently agreed by both parties that these witnesses might be examined by the Sub-Magistrate. It is clear that no objection was taken to the examination of the witnesses by the Sub-Magistrate. The latter examined 7 witnesses for the petitioners, 4 for the counter-petitioner and a court witness, and, sent in his report. The report was read in evidence before the Sub-Divisional Magistrate and arguments were addressed by the pleaders on both sides. Finally, the Sub-Divisional Magistrate came to the conclusion that there was a pathway which had been obstructed by the appellants, and directed that the appellants should not disturb the respondent in the enjoyment of that path until a decision was come to thereon by the Civil Court. Against this order, a petition was presented to this Court and was heard by Mr. Justice Spencer. The learned Judge came to the conclusion that there was no irregularity in the conduct of the proceedings by the Sub-Divisional Magistrate and dismissed the petition. This Letters Patent appeal is against the order of the learned Judge.
11. Mr. Srinivasagopalachariar contended that it was not competent to the Sub-Divisional Magistrate to delegate the examination of the witnesses to his subordinates. It is true that Section 148 of the Code of Criminal Procedure only authorises the Sub-Divisional Magistrate to depute his Subordinate to make a local enquiry. The question as to what exactly is connoted by the term 'local enquiry' has not been laid down in any decided case. 'Local inspection' may perhaps imply that no witnesses are to be examined at the spot. But the expression ' local enquiry' is not necessarily inconsistent with the idea that the witnesses are to be examined in connection with the enquiry. The term ' enquiry' itself is defined by Section 4 Clause (k) whch says ' it includes every enquiry other than a trial conducted by a Magistrate or Court'. As at present advised, I am not satisfied that a person making a local enquiry is not competent to examine witnesses.
12. The further question is, supposing it was competent to the Sub-Mgistrate to examine the witnesses, whether the evidence taken by him can be used by the Sub-Divisional Magistrate for passing his order). Clause 2 of Section 148 says that the report of the officer so deputed may be read as evidence in the case. It did not say that the evidence taken at the enquiry shall be part of the record in the case, and can be relied upon for his order by the Sub-Divisional Magistrate. It is therefore doubtful whether the procedure adopted by the Sub-Divisional Magistrate in basing his conclusion upon the evidence taken by the Sub-Magistrate is regular. The learned Advocate relied upon the decision of Mr. Justice Wallis, (as he then was), in Arumuga Govindan v. Venkatasubbier I.L.R, (1907) M. 82 for the position that where a first class Magistrate acts upon the evidence taken by a Sub-Magistrate the former must be deemed to have acted without jurisdiction. I am inclined to take the same view. I have already held in Crl. R. C. No. 661 of 1916 that where there is no legal evidence upon which a conclusion can be based, the Magistrate must be deemed to have acted without jurisdiction. But there is nothing in the records before us to suggest that the Sub-Divisional Magistrate refused to hear any evidence which was tendered before him. Apparently in the case disposed of by Mr. Justice Wallis, the Magistrate refused to hear the evidence which he was asked to receive. The reference at the end of the judgment to cross examination on the depositions given before the Sub-Magistrate does not show that objection was not taken to the procedure by the party affected by it. I think that this defect or irregularity in the procedure is cured by Section 537 of the Code of Criminal Procedure. As pointed out by Mr. Justice Subramania Aiyar in Kadir Batcha v. Kadir Batcha Rowther I.L.R. (1905) M. 237 a mere Mu technical irregularity should not be allowed to affect the proceedings unless the party has been prejudiced thereby. In this case, the parties were apparently willing that the Sub-Magistrate should examine the witnesses. They took no objection to the procedure before the Sub-Divisional Magistrate, examined witnesses before him and were content to have his decision upon the materials placed before the Sub-Magistrate. It is clear to my mind that there has been no prejudice to the appellants by the procedure adopted by the Sub-Divisional Magistrate. The learned Judge Mr. Justice Spencer, was asked to exercise his powers of revision under the Government of India Act, Section 107 and he came to the conclusion that there was no irregularity. In Letters Patent Appeal, we should not interfere with that order unless we are satisfied that the party has been prejudiced by the order of the Sub-Magistrate.
13. On the second point as to whether the enquiry started at the instance of the respondent was within three months of the last exercise of the right of way, I am clear that we should not allow this objection to be argued in this Court, because if it had been raised before the Sub-Divisional Magitrate, the respondent would have been in a position to say that when he filed the petition, more than three months had not elapsed from the date of his exercising the right of way.
14. For these reasons, I am of opinion that the order of the learned Judge is right and that this appeal should be dismissed.