1. Criminal Revision Case No. 445 of 1930.--The petitioner seeks to revise an order passed in the course of a summons case by the Sub-Magistrate, Periyakulam. There is no provision in the Code of Criminal Procedure for writing orders in the course of a case, and the Sub-Magistrate would have been well advised to have deferred all writing till after the conclusion of the trial. If the petitioner felt aggrieved, his . proper course was to have moved in revision against the issue of summons. But speaking for myself, I should not have thought it advisable for this Court to intervene at that stage. Where a remedy ultimately lies by way of appeal, it is unnecessary for the High Court to move in revision. And if it is argued that the Lower Court is clearly acting without jurisdiction, then the short answer is that the party need not concern himself at all about the trial, but can simply appeal if the matter comes to judgment, if, on the other hand, it is not so clear, and it is a moot point whether or not the Lower Court has jurisdiction, then that matter should be thrashed out fully in both Courts below before it is brought, if necessary, to the High Court. Therefore if this petition had come before me for admission 1 should have dismissed it out of hand. I have only considered it because its admission was allowed, and the petitioner after incurring the cost of printing has brought the matter up ready for hearing.
2. The President of the District Board, Madura, complains against the petitioner for constructing a building on a road vested in the Board. No section is mentioned. Attached to the complaint was a notice sent by the President of the District Board to the petitioner and apparently he is prosecuted for not obeying that notice by removing the encroachment, in which case it would be a complaint under Section 220 of the Act (Madras Local Boards Act).
3. Apparently the road in question is vested in a Union under Section 60. The statement in the complaint that the road vested in the District Board seems to have been a deliberate misstatement of fact, because when the petitioner pleaded that the prosecution was without jurisdiction, the President of the District Board disclosed a cause of action of which he must have been aware when he launched the prosecution, but which he chose entirely to conceal. It appears that the Union was requested to move in the matter, and declined. Thereupon the President of the District Board acted under Section 42 (b) and assumed the function of the Union Board. This may be done under Section 41 if the Board has made default in performing any duty imposed upon it by statute.
4. The President of a Local Board may require the owner of any premises to remove an obstruction under Section 159; but the only duty imposed upon him under that section is to exercise his discretion in the matter. The Act does not lay down that he must remove any encroachment; and if, as in this case. he elects not to serve a notice, it cannot be said that he has made default in performing his duty. Matters of discretion are never considered to be mandatory. of. 10 Halsbury, para. 170.
5. It must be found, therefore, that the President of the District Board had no authority to serve a notice under Section 159 in respect of a road not vested in that Board, or to prosecute for the failure to comply with that notice.
6. The petition is allowed and the complaint dismissed. A similar order is passed in Criminal Revision Cases Nos. 465, 466, 467, 468, 520 and 521 of 1930.