Thommen Joseph vs Poulose Varkey

Kumara Pillai, J.—This is a petition for revising an order of the District Magistrate of Trichur which purports to have been passed by him in exercise of his rcvisional jurisdiction. One Poulose Varkey who is the Respondent in this Court filed a complaint, C. C. No. 3227/54, before the Kanayannoor Second Class Magistrate complaining that he had been assaulted and belaboured by certain persons. One of the witnesses cited by him was Victoria, Sister of accused 1, a girl now .studying in the school final class. The witness list did not show what matter or point was sought to be proved through this witness. The Magistrate however issued summons to her, but before she received it she filed a petition in Court "Smting that she did not know anything about the incident and that she had been cited as a witness for being insulted and harassed. The Magistrate thereupon ordered that the examination of the other witnesses will be proceeded with and (hat she would .not be examined for the time being. Subsequently the complainant examined six witnesses and then applied for process again to Victoria. On his application the Magistrate passed an order which reads as follows "

All the eyewitnesses in die case have been examined. The witness cited is to prove a motive. Before allowing the process to be issued in the correct address the decided by the High Court in exercise of its powers I under Sx.439. Section 438 (1) reads:

Against this order the complainant filed a revision petition before the District Magistrate of Trichur, and the District Magistrate has by his order dated 18-4-1956 quashed the Sub-Magistrate''s order and directed him to issue process to Victoria and examine her as a witness for the prosecution. The present application is to revise the order of the District Magistrate dated 18-4-1956.

The District Magistrate lias acted clearly in excess of his jurisdiction. No doubt u/s 435 of the Code of Criminal Procedure the District Magistrate can call for and examine the record of) any proceeding in an inferior criminal Court for ascertaining die correctness, legality or even propriety of any finding, sentence or order. But that section empowers him only to suspend the execution of a sentence and release the accused on bail pending the examination of the. record and does not empower him to quash the finding, sentence or order. Section 435 reads:

"The High Court or any Sessioas Judge or District Magistrate or any Sub-Divisional Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court situate within his jurisdiction for die purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court and may, when, calling for such record, direct that the execution of any sentence be suspended and, if the accused is in confinement, that he be released on bail or on his own bond pending die examination of die record.

Under Section 436 the District Magistrate is compe�tent to quash an order passed by a Subordinate Magistrate dismissing a complaint u/s 203 or sub-section 3 of Section 204 or an order discharging an ac�cused. Section 436 reads as follows:

"On examining any record u/s 435 or otherwise the High Court or die Sessions Judge may direct the District Magistrate by himself or by any of the Magistrates subordinate to him to make, and the District Magistrate may himself make, or direct any Subordinate Magistrate to make, further inquiry into any complaint which has been dismissed u/s 203 or Sub-section (3) of Section 204, or into the case of any person accused of an offence who has been discharged."

This section is confined to cases of dismissal of complaints u/s 203 or Sub-section (3) of Section 204 and of discharge of the accused and does riot confer any power on the District Magistrate to quash other orders passed by a Sub-Magistrate. u/s 437 the District Magistrate is competent to order a Sub-Magistrate to commit an accused improperly discharged for trial to the Sessions Court but that section also confers no jurisdiction on the District Magistrate to interfere in revision with interlocutory or other orders. The section reads:

When, on examining, the record of any case u/s 435 or otherwise the Sessions Judge or District Magistrate considers that such case is triable exclusively by the Court of Session and that an accused person has been improperly discharged by the inferior Court, the Sessions Judge or District Magistrate may cause him to be arrested, and may thereupon, instead of directing a fresh inquiry, order him to be committed for trial upon, the matter of which he has been, in the opinion of the Sessions Judge or District Magistrate, improperly discharged.

The only authority competent to revise odier orders,'' including interlocutory orders, passed by a Sub-Magistrate is the High Court. Tho High Court gets that jurisdiction by virtue of Section 439. If in cases not governed by Sections 436 & 437 the District Magistrate finds that any order in the proceedings which he has called for examination by virtue of the powers conferred on him u/s 435 is illegal or improper die only course open to him is to make a report to the High Court u/s 438 of the Code of Criminal Procedure and leave the matter to be idecided by the High Court in exercise of its powers I under Sx.439. Section 438 (1) reads:

"The Sessions Judge or District Magistrate may, if he drinks fit, on examining u/s 435 or otherwise the record of any proceeding, report for the orders of the High Court the result of such examination, and, when such report contains a recommendation that a sentence be reversed or altered may order that the execution of such sentence be suspended, and, if the accused is in confinement, that he be released on bail or on his own bond.'''' In a somewhat similar case, Moti Vs. Beni, the Allahabad High Court has held that where the District Magistrate decided, upon a consideration of the application and examination of the record, that the order of a special Magistrate regarding die custody of a minor girl was unjust, he could only act u/s 438 and had no power to set aside the special Magistrate''s order. It has therefore to be held in this case that the District Magistrate''s order dated 18-4-1956 is without jurisdiction.

In a somewhat similar case, Moti Vs. Beni, the Allahabad High Court has held that where the District Magistrate decided, upon a consideration of the application and examination of the record, that the order of a special Magistrate re�garding die custody of a minor girl was unjust, he could only act u/s 438 and had no power to set aside the special Magistrate''s order. It has therefore to be held in this case that tho District Magistrate''s order dated 18-4-1956 is without jurisdiction.

At the time of hearing in this Court the Respondent''s counsel prayed that as the matter has been brought to this Court the Sub-Magistrate''s order refusing to issue process to Victoria might be set aside by this Court in exercise of its revisional jurisdiction if, the District Magistrate has acted without jurisdiction. , I am however unable to accede to this prayer. Section 252 of the Code of Criminal Procedure gives a discretion to the trial Magistrate in the matter of issuing process for witnesses. Clause (2) of Section 252 reads:

The Magistrate shall ascertain, from die complainant or otherwise the names of any persons likely to be acquainted with the facts of the case and to be able to give evidence for the prosecution, and shall summon to give evidence before himself such of them as he dunks necessary.

No doubt the discretion vested in the trial Magistrate by the above provision of law has to be exercised judicially and not capriciously. In the present lease the trial Magistrate has not exercised his discretion as yet, and diere is no indication that he would exercise it either capriciously or against the complainant. The complainant''s deposition would show that Victoria was cited only for the purpose of proving the accused''s motive which is said to be to give a thrashing to'' the complainant for certain advances made and love letters sent by him to the girl about three or four years before the occurrence.

In view of the nature of this allegation which constitutes a very remote motive the trial Magistrate thought that the question of issuing process to Victoria need be considered only after all the other prosecution witnesses were examined and tins ell eel of their evidence considered by him. If there was no reliable evidence about the occurrence itself no purpose would be served by proving a motive which is so remote. The Sub-Magistrate''s conduct in postponing the decision on the question of issuing process to Victoria cannot therefore be said to be improper or capricious. There is no scope for exercising the revisional powers of the High Court until the Sub-Magistrate has refused to exercise the jurisdiction vested in him under Clause (2) of Section 252, or has wrongly or capriciously exercised that discretion against the complainant. As neither contingency has arisen in this case as yet, I am unable to accede to the complainant''s prayer for quashing the order of the Sub Magistrate.

For the reasons stated above I allow this revision petition and set asied the order of the District Magistrate dated 18.04.1956.