1. The facts of the case are set out in my learned colleague's judgment. The points for consideration are.
(1) whether the order of Tyabji, J., was correct;
(2) if not, what action should be taken by this Court in the question of revising the order of the Sub-Divisional Magistrate.
2. On the first point, I also think that Section 439, Code of Criminal Procedure, even supposing that it is applicable to tills case, does not give this Court power to call for a finding when exercising its powers of revision, although it does give power to call for additional evidence upon which this Court can itself come to a conclusion. I think, therefore, that the learned Judge's order, which apparently was based solely upon the finding submitted by the Sub-Divisional Magistrate, was not correct. The additional evidence must be weighed by the Court of Revision, and its decision based upon a consideration thereof. I agree, therefore, that the order appealed against cannot be supported.
3. In this view it is necessary to consider the second point and determine what action is to be taken on the revision petition. In Kamal Kutty v. Udaya Varma Rajavalia Raja of Chirakal 17 Ind. Cas. 65: (1912) M.W.N. 1154 : 13 CrI. L.J. 753. Ayling and Napier, JJ., have held in a carefully considered judgment that this Court has no power under Section 439, Code of Criminal Procedure, to revise proceedings under Chapter XII of that Code, and support their conclusion by a consideration of the various authorities. Proceedings under Chapter XII are of a special nature and are such that the Magistracy may well be allowed greater liberty in carrying out those provisions than they are allowed in trying ordinary crime. The provisions of the Chapter are concerned with disputes relating to immoveable property which are likely to cause a breach of the peace, and give Magistrates power to deal with matters of a quasi-civil nature, because upon the Magistracy and Police is thrown the burden of maintaining the public peace. In this view I think it undesireable that such orders should be interfered with in revision, unless they are made without jurisdiction or are obviously unreasonable or unjust. I can, therefore, see no reason to differ from the conclusion arrived at in Kamal Kutty v. Udayavarma Raja Valia Raja of Chirakal 17 Ind. Cas. 65: 12 M.L.T. 49 : (1912) M.W.N. 1154, which is also the view of the other High Courts.
4. The power of revision in this case must be exercised, if at all, under Section 15 of the Charter Act, and as pointed out by Ayling, and Napier, JJ., in the same case it has never been customary for this or other High Courts to interfere except where it can be said that the Magistrate's order was passed without jurisdiction. I will not deal with the one or two cases which have not followed this custom, such as Reid v. Richardson 14 C. 361, for when a discretionary power is to be exercised it may happen that certain circumstances exist in a particular case which would justify interference in revision on grounds which would not ordinarily justify such interference, and I am far from holding that the powers of this Court under the Charter Act should be construed in a limited manner. Can it be now said that the Magistrate's order was passed without jurisdiction or that it is such an exceptional case that it warrants a departure from the ordinary custom of this Court? The latter part of the question must certainly be answered in the negative. As regards the question of jurisdiction, the only contention raised is that an order under Section 147, Code of Criminal Procedure, cannot be passed in respect of a public road or street and that, therefore the Magistrate's order was without jurisdiction. In support of this argument we are referred to the dictum of Subramania Aiyar and Davis, JJ., in Kolandai Nayakan v. Karabudda Savudri 6 M.L.J. 193: 'It is open to question whether Section 147, Criminal Procedure Code, applies to a question like the present--the right to use a public highway.' I see nothing in the language of Section 147 which necessarily debars a Magistrate from passing an order with reference to a public street and in Karuppana Kownden v. Kandasawmi Kownden 23 Ind. Cas. 730 it was expressly held that the terms of the section were wide enough to cover disputes when the right of way claimed is a right to a public path. Further, it does not appear certain that in this case the order does refer to a public street. No doubt the Sub-Divisional Magistrate has submitted a finding that A-B, B-C on the plan is a public street, but it was his predecessor that passed the order under Section 147, Code of Criminal Procedure, in which he remarked: 'Further the right is claimed for Sambans only and it is said that other castes higher than they, are not allowed to pass by the street.' Such a prohibition is quite inconsistent with the view that it is a public street, over which the public generally has a right to pass. In the later finding also it is observed that the site of an oil mill in the middle of the street is private property, and on one side of the oil mill, there is a passage wide enough to take two persons abreast, while on the other side, the passage is even narrower. The ground surrounding the oil mill is also claimed as private property. In these circumstances, I cannot hold that the passage in question has been proved to be a public street, although it is quite possible that the portion B-C may be a public street. Whether a portion of the prohibited area is public street or not, I am of opinion that the order passed was not made without jurisdiction and I would, therefore, allow the Letters Patent appeal and restore the order of the Sub-Divisional Magistrate.
Sadasiva Aiyar, J.
5. This Letters Patent appeal has been presented against the order of Mr. Justice Tyabji, passed on a revision petition preferred against the order of the Tuticorin Sub-Divisional Magistrate. The order of the Magistrate is dated 23rd April 1914 and was passed under Section 147 of the Criminal Procedure Code. The order is to the effect that processions connected with weddings, funerals and festivals shall not be taken by Sambans residing in the Paracherry (past an oil mill along A-B) and then northwards from along the oil-mongers' street B-C, until the Sambans obtained the order of a competent Court authorising them to do so. (See the plan in the case.) The reason given for the order is that though the claim of the Sambans is supported by the oral evidence of the village officers, the Magistrate does not believe it because the Sambans have not exercised the right unchallenged to pass by the street of the oil-mongers. It seems clear that the Sub-Divisional Magistrate made no distinction between A-B and B-C. His reference to 'other castes higher than' the Sambans not being allowed by the Chetties 'to pass by the street' applies evidently to both A-B and B-C, and I think it very probable that the question of private or public street was not considered by him at all. The higher castes referred to in the Magistrate's order are two castes higher than Sambans' (Pallars and Nadars) and not higher than the Chetties. (See paragraph 5 of the statement of the Chetties as counter-petitioners.) It is also clear from paragraphs 7 and 5 of the said statement that except as regards the portion A-B (a comparatively small length of the whole disputed length of street), the Chetties did not claim private right of ownership over the Chetty street and based their claim to prohibit the Sambans on the ground of caste pollution by processions of Sambans being allowed to go through. I do not think that such sentimental caste objections should be countenanced by the Magistrates acting under Section 147 of the Criminal Procedure Code, though of course they can, in emergent cases, pass temporary orders under Section 144 (even if such orders entourage caste bigotry) when the preservation of the public peace is required. Even in such cases, the temporary nature of the order cannot be attempted to be changed by continued renewals see Govinda Chetti v. Perumal Chetti 30 Ind. Cas. 453.
6. Mr. Justice Tyabji on revision held (a) that if the roads A-B and B-C in question are public roads, an order prohibiting certain members of the public from passing over such public roads until they established their right to do so in a competent Court was a 'futile order' and should be set aside in revision; and (b) that as the Magistrate had not in his order dealt with the question whether the roads were public roads or not, the case should be remitted to the Magistrate to report on that question, the learned Counsel who appeared on both sides before Mr. Justice Tyabji having suggested that course.
7. On this first order of Mr. Justice Tyabji, the records were sent to the Magistrate who sent his report, in which he gave the following findings:
(a) A-B in the plan is a passage used freely at all times by the people of all classes. B-C is a public street in the fullest sense of the term, a fact which the Chetties themselves do not attempt to controvert.
(b) The mill marked 4 in the plan within the area A-B is the private property of the appellants (Vania Chetties).
(c) The whole area A-B, except the site of the mill 4 and the site of the temple 5, is a public street, though the Chetties are entitled to obstruct the public from using the road to this extent, namely, that they could work the mill by yoking bullocks to a shaft attached to the mill and the public cannot at those times use that narrow fraction of the passage (varying in location) which is covered by the shaft and bullocks.
8. The report containing the above findings was accepted by Mr. Justice Tyabji, who in his second order on the revision petition set aside the Divisional Magistrate's order prohibiting the Sambans from using the paths A-B and B-C.
9. Mr. Seshachariar who appeared for the appellants (Chetties) before us contended, among other things, that the learned Judge erred in deciding the case upon the finding submitted by the Magistrate. I think there is some force in this contention. I shall take it that under Section 15 of the Charter Act, this Court's power of revision can be exercised to the like extent (at least) to which the powers of revision can be exercised in a case coming under Section 439, Criminal Procedure Code. Section 439 gives the High Court power to exercise all the powers of a Court of Appeal under Section 428. Section 428 allows fresh evidence to be taken by the Appellate Court or by a Magistrate under the orders of the Appellate Court, but the Appellate Court has to come to its own conclusion upon the evidence so taken and there is no provision in Section 428 allowing the Appellate Court to accept the finding of the Magistrate come to on such evidence. The gist of the evidence given in this case is fully set out by the Magistrate in his report and on that evidence I think the Magistrate was not justified in finding that the whole of the circle made by the round of the bullocks does not belong to the Chetties, but only the mill site. I think that the whole site included within the circumference trodden by the bullocks belongs, to the Chetties.
10. It was contended further for the appellants that Mr. Justice Tyabji was in error in holding that the Magistrate had no jurisdiction to pass orders under Section 147 where the right of way in question was through the public streets. It is doubtful whether Mr. Justice Tyabji in his first order went so far as to say that the Magistrate had no jurisdiction to pass such orders even in cases where the order was an order of prohibition of the use of the right of public way. So long ago as in 1896, Subramania Aiyar and Davies, JJ., had no doubt said in the case reported as Kolandai Nayakan v. Karabudda Savudri 6 M.L.J. 193: It is open to question whether Section 147, Criminal Procedure Code, applies to... the right to use a public high way'. Tri Criminal Revision Case No. 402 of 1908 also, Benson and Sankaran Nair, JJ., set aside the order of the Divisional Magistrate prohibiting the use of the public way under Section 147 as made without jurisdiction. To support that conclusion they relied (among other grounds) upon an old case, In re Narayana 2 Weir 115, which was decided under Section 532 of the old Code of 1872. In the case of Karuppanna Kownden v. Kandasawmi Kownden 23 Ind. Cas. 730 : (1914) M.W.N. 394 : 15 Cri. L.J. 362, Spencer, J., and myself held generally that the Magistrate had jurisdiction to pass orders in respect of public streets also under Section 147, though that was a case where we interfered in favour of the right of passage. I shall, therefore, take it that the Magistrate had jurisdiction to pass orders even against the right of passage through a public street. But, in my opinion, he ought not to pass such a prohibitory order unless it is clearly proved that there is a right by custom or by grant or by a Statute in one section of the public to prevent another section of the public from using the public street on particular occasions or for particular purposes, when such use is ordinarily and prima facie lawful. In the case of Sadagopa Chariar v. Rama Rao 26 M.k 376, Davies and Benson, JJ., held following the case of Sundram v. Queen and Ponnusami v. Queen 2 Weir 77 that 'every member of the public, and every sect, has a right to use the public streets in a lawful manner, and it lies on those who would restrain him in its exercise to show sonic law or custom having the force of law depriving him of the privilege' (page 384). This decision was confirmed by the. Privy Council in the case of Sadagopa Chariar v. Krishnamoorthy Row 9 Bom. L.R. 663, notwithstanding the doubt thrown upon it by Justice Sir Subramania Aiyar, who sat in a Full Bench with Justices Davies and Benson, in another case reported in the same volume as the case of Vijiaraghava Chariar v. Emperor 26 M.k 554. In this case, no such custom having the force of law prohibiting the use of the public street (whether the public street is B-C alone or A-B and B-0 together or B-C and a portion of A-B) by the Sambans was set up or proved. Even if the whole of the area A-B is private property, the Sub-Divisional Magistrate's order prohibiting the Sambans from going through even the portion B-C (an admitted public street) is clearly erroneous, the Sambans having public streets 15 and 2, 9, 7 in the plan through which they could come to point B besides the path A-B). On my finding that besides the greater length B-C which is admittedly public street, the remaining portion alone of the area A-B after excluding the area enclosed by the mill bullocks' round, forms the public street, I would modify the order of Mr. Justice Tyabji and pass an order that the respondents shall not use the area covered by the round of the oil mill bullocks, until they obtain the decision of a Civil Court and that in other respects the order of the Sub-Divisional Magistrate prohibiting the Sambans from taking processions even along the admittedly public street B-C and along the portion of A-B which I find to be the public street, should be set aside.
11. Under Clause 36 of the Letters Patent, the order of Tyabji, J., will be modified as above mentioned.