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T.N. Borai Goudar Vs. Commissioner, Ootacamund Municipality - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1938Mad832; (1938)2MLJ394
AppellantT.N. Borai Goudar
RespondentCommissioner, Ootacamund Municipality
Cases ReferredAdemma v. Venkatasubbayya
Excerpt:
- .....of the stationary sub-magistrate, coonoor. before however that order had been communicated to the bench magistrate's court, the case came up for before the bench and on the accused's plea he was convicted and sentenced to pay a fine of rs. 5. this petition has been filed on the ground that the bench court ceased to have jurisdiction after the order of the joint magistrate and that therefore the order of that court is illegal.2. with regard to stay applications in civil matters it has been held by the full bench in venkatachelapati rao v. kameswaramma : (1917)33mlj515 that the stay order operates only from the date of which the order is communicated to the court whose proceedings are stayed. the reason seems to be that the court having seisin of the matter in question has jurisdiction to.....
Judgment:
ORDER

Horwill, J.

1. The petitioner was charged before the Bench of Magistrates, Ootacamund, under Sections 249 and 313 of the District Municipalities Act for storing firewood. During the pendency of the case before the Bench, the accused put in a transfer application in the Court of the Joint Magistrate of Coonoor, who ordered the transfer of the case to the Court of the Stationary Sub-Magistrate, Coonoor. Before however that order had been communicated to the Bench Magistrate's Court, the case came up for before the Bench and on the accused's plea he was convicted and sentenced to pay a fine of Rs. 5. This petition has been filed on the ground that the Bench Court ceased to have jurisdiction after the order of the Joint Magistrate and that therefore the order of that Court is illegal.

2. With regard to stay applications in civil matters it has been held by the Full Bench in Venkatachelapati Rao v. Kameswaramma : (1917)33MLJ515 that the stay order operates only from the date of which the order is communicated to the Court whose proceedings are stayed. The reason seems to be that the Court having seisin of the matter in question has jurisdiction to proceed with it and that the appellate Court in ordering stay is merely prohibiting that Court from proceeding further with the matter until further orders. But the order of prohibition does not take away the jurisdiction of the trial Court; it merely suspends it. If therefore the order has not been received the Court does not lose its jurisdiction because the order has been passed. It therefore follows that any act done after the order of stay is passed is still valid unless the order of the higher Court has been disobeyed. This reasoning would not however apply to an application for transfer. The ordinary rule is that an order operates from the date on which it is passed, the rule with regard to stay proceedings and injunctions being exception to that general rule. Although no authority has been quoted which deals with the date on which a criminal order of transfer operates. Ademma v. Venkatasubbayya : AIR1933Mad627 deals with that question with regard to civil suits. It was there held that the order for transfer must operate from the date on which that order is passed and that therefore any Court which continues to do any act after the order is passed - even though a copy of the order has not been received by it - is acting without jurisdiction. The same reasoning would, I think, apply to criminal proceedings; and I am therefore of opinion that in the present case the Bench Court, when it took up the case of the accused and disposed of it had no jurisdiction to do so.

3. Nevertheless, it does not follow from the mere fact that the Bench Court had no jurisdiction, that its order is void. I think that Section 531, Criminal Procedure Code, would apply to a case of this kind and so prevent the passing of this order without jurisdiction from being void. The whole principle underlying the various provisions of Chapter 45 is that no order or sentence shall be void on the mere ground of some irregularity or want of jurisdiction, unless it leads to a miscarriage of justice or prejudices the accused. It seems to me in the present case that it is immaterial whether the case of the accused was considered by the Bench Court or by the Stationary Sub-Magistrate. No miscarriage of justice having occurred this Court will not interfere in revision and set aside the order.

4. The petition is therefore dismissed.


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