In Re: N.P. Esappa Chettiar

Horwill, J.—The special officer of the Panchayat Board of Nattarasankottai filed a complaint against the petitioner u/s 157 of the Local

Boards Act of erecting a wall and structure on the public road. The petitioner thereupon filed a civil suit in the Local District Munsiff''s Court for

establishing his right to the property and praying for an injunction restraining the defendant Board from interfering with his rights. At the same time

he filed an application for a temporary injunction restraining the special officer from proceeding with the prosecution of the criminal case. The

District Munsiff granted the injunction prayed for; and so both the special officer and the Criminal Court felt that the criminal case could not be

proceeded with. As it however seemed to the District Magistrate that he might proceed with the case u/s 223 of the Local Boards Act, the Public

Prosecutor intervened and sought to continue the prosecution on behalf of the Government. The petitioner has filed the present petition in this

Court to revise the order of the Magistrate.

I have no doubt that the petitioner is right in saying that the Government cannot proceed with this prosecution. Under the Local Boards Act,

public roads within the local board area are vested in the Local Board and Section 223 makes it clear that except under certain circumstances a

criminal case can be launched only upon the complaint of the President of the Local Board or by some person specially authorised in this behalf.

The sentence ""Nothing herein shall affect the provisions of the Code of Criminal Procedure in regard to the. power of certain Magistrates to take

cognizance of offences upon information received or upon their own knowledge or suspicion"" does not in this case give the Government power to

proceed with the prosecution. The Magistrate did not take cognizance of the offence upon information received or upon his own knowledge or

suspicion, but upon the written complaint of the Special Officer of the Panchayat Board. Government may be the ultimate owner of the land over

which the road passes; but that does not give them the right to prosecute under the Local Boards Act, although they may have remedies under the

Land Encroachment Act or other enactment.

I think it necessary to say a few words about the very improper order of the District Munsiff. In the first place, I think that the learned District

Munsiff had no authority to pass such an order, in view of the provisions of Section 56(e) of the Specific Relief Act. He could not stay the criminal

proceeding directly; so he attempted to do it by preventing the proceedings from continuing by issuing an injunction to the defendant Board. But

even if the District Munsiff had jurisdiction to stay a prosecution in this way, he ought not to have exercised it in this case and interfered with the

course of justice in another Court. Even in the case quoted by the learned District Munsiff, it is pointed out that only in extreme cases should a

Court interfere with the proceedings of a local body or restrain its officers from doing their duty. The District Munsiff moreover had no material on

which he could conclude that the Special Officer had no right to prosecute. If the petitioner was aggrieved he was not without his remedy and

could, as others do in similar circumstances, seek the assistance of the Criminal Courts superior to. that of the Magistrate trying.

The Special Officer unfortunately did not endeavour to get the improper order of the District Munsiff set aside by appealing to a higher tribunal,

and so the special officer cannot disobey the injunction of the District Munsiff. That does not however mean that the Magistrate cannot proceed

with the trial. If he issues a summons to the special officer to give evidence in the case the Special Officer cannot disobey that summons. All that

the Special Officer has been ordered with regard to the criminal case is not to further prosecute it. That would mean that he may not himself take

any active steps in the further prosecution of this case. That does not prevent him from appearing and giving evidence if he is so ordered by the

Magistrate.

It is said that the special officer at a subsequent hearing did not appear and that therefore the accused should have been acquitted. u/s 247,

Criminal Procedure Code, it is open to the Magistrate to acquit the accused if the complainant does not appear on the date of hearing, unless for

some reason he thinks proper to adjourn the hearing of the case to some other day, provided that where the complainant is a public servant--as in

this case--and his personal attendance is not required the Magistrate may dispense with his attendance and proceed with the case.

With the above remarks the petition is allowed and the order of the Magistrate permitting the Government to proceed with the prosecution is set

aside.