In Re: Usman Haji Mahomed

G.D. Madgavhar, Acting C.J.

The question in this appeal is whether this Court has jurisdiction to set aside an order of the Chief Presidency Magistrate dismissing the claim made by the petitioner on behalf of a widow for compensation under a 45 of the City of Bombay Police Act of 1902 for absence and refusing to take the matter back on his file.

The question necessarily depends on whether the order in question was passed by the Chief Presidency Magistrate sitting as a Court, or whether it was passed by him as a persona designata. It is argued for the petitioner that u/s 15 of the Charter this Court has jurisdiction and that it is not expressly excluded by virtue of any other enactment. Jurisdiction, however, by way of appeal or revision will not be inferred but must be expressly given by statute.

On the main question as to whether the order was passed by a Court or by the Chief Presidency Magistrate as a persona designata, reliance is sought to be placed by the petitioner on the corresponding provisions in England, e. g., Halsbury''s Laws of England, Vol. XXII, Articles 1044 and 1047. Even there it is to be observed that if the claimant is aggrieved by a refusal on the part of the police authorities, the appeal lies to the Home Sacretary and not to the criminal Courts, without prejudice, it may be, to his right of action by way of a civil suit. With this last matter we are not now concerned.

Confining ourselves to the question above, the position, in our opinion, is analogous to that of a Presidency Magistrate under the Madras City Municipal Act: Vijiarayhavalu Filial v. Theagaroya Chettti ILR (1914) Mad. 581 or of District Judges in the case of Municipal elections: Balaji Sakharain v. Merwanji Nowroji ILR (1895) 21 Bom. 279 and Chunilal Virchand v. Ahmedubad Municipality ILR (1911) 36 Bom. 47, 13 Bom. L.R. 958; or the Chief Judge of the Court of Small Causes u/s 33 of the City of Bombay Municipal Act: Bhaishankar v. The Municipal Corporation of Bombay ILR (1907) 31 Bom. 604, 9 Bom. L.R. 417 and R.S. Navalkar Vs. Mrs. Sarojani Naidu, and the recent decision regarding Municipal assessment in Ahmed Sulleman v. Municipal Commissioner of Bombay (1929) 32 Bom. L.R. 178 . The City of Bombay Police Act IV of 1902 does not generally nor does Section 45 in particular deal with criminal Courts or their powers. The conclusion, therefore, is that the special power under s 45 on the Chief Presidency Magistrate is not as a criminal Court but as a persona designata. If so, no application by way of revision lies to this Court, not even to an order made refusing to take the petition back on the file for decision of the claim on the merits. The application fails and is dismissed.