Krishna Kone vs Narayana Dass

Napier, J.—This is a petition to revise the order passed by the District Magistrate of Tinnevelly setting aside an order passed by the

Stationary Sub-Magistrate of Tinnevelly granting compensation u/s 250, Criminal Procedure Code. Two points are taken, one is that no notice

wax given to the Accused in whose favour the order was passed; and secondly that no notice was Given to the Public Prosecutor.

With regard to the first objection that no notice was given to the accused, the matter seems to me to be concluded by the decisions of this Court

namely, Ambarragari Nagi redid v. Basappa I.L.R(1909) . Mad. 89 and Guruswami Naiken and Others Vs. Tirumurthi Chetty, . I can find nothing

in the language of the learned Judges in Venratrama v. Krishna I.L.R.(1915) Mad. 1901 to throw any doubt on the correctness of those decisions.

The question whether notice has to be given to the public Prosecutor is a different matter. The power of appeal is found in Section 250(3); ""A

complainant or informant who has been ordered under Sub-section (1) by a Magistrate of the 2nd and 3rd class to pay compensation to the

accused person may appeal from the order as if such complainant or informant had been convicted on a trial held by such Magistrate."" The

important words in this sub-section are the last words. These were considered by a Bench in Venkalrama v. Krishna (1915) ILR 38 M. 1091 and

Seshagiri Iyer, J. uses a very guarded expression, "" Section 250 is not self contained as are sections relating to the grant of sanction and to

convictions for contempt. I am not prepared to hold that Chap. 31 does not apply to compensation appeals."" It seems to me that with all deference

to the learned Judge, Chap. 31 applies to the extent that certain provisions in Chap. 31 have been incorporated in Section 250(3) by reference.

This seems to be the view taken by the Bench in Guruswami Naiken and Others Vs. Tirumurthi Chetty, for the learned judges considered the

terms of Section 422 and refer to the language "" such officer as the local Government may appoint in this behalf."" What are to be found in that

section, I have no doubt that the proper way to treat this Chap. 31 is to incorporate all that is suitable and proper for appeals in Section 250(3). In

my opinion, it is not'' possible to limit the words "" may appeal from the order as if such complainant had been convicted"", to because if it is only the

form in which the appeal is to be laid, the form in which the appeal should be laid that is to be incorporated there is not to be found any provision

for the hearing of the appeal. To my mind every section in Chap. 31 which can assist the procedure of hearing and disposing of appeals according

to the principle of the Code should be incorporated. It has to be noted that in Section 250(3) the name of the Court to which the appeal shall lie is

not even stated, and we have to go to Section 407 to find which is the proper Court. It is therefore necessary to incorporate Section 407 which

provides that a person who was convicted on a trial held by any Magistrate of the 2nd or 3rd class which words in Section 407 apply exactly to

the words in Section 250(3) as if he had been convicted on a trial held by such Magistrate, may appeal to the District Magistrate.

Then as to the form of the appeal I have no doubt that Section 419 must b incorporated and then Section 421 which authorises the Appellate

Court to dismiss the appeal summarily. Then we come to Section 422. If the appellate court does not dismiss the appeal summarily, it shall cause

notice to be given to the appellant or his pleader and to such officer as the Local Government may appoint in this behalf. ""It has been suggested by

ccunsel for the respondent that this clause should not be incorporated. The answer to that is that on the language of Section 423 which he admits

must be incorporated, for there is no other provision for the appeal. Section 422 necessarily should be incorporated because the words are "" the

appellate court shall then "" that is, after the procedure in Section 422 has been complied with "" send for the records of the case "" and it also

contains in specific words the provision for the hearing of the Public Prosecutor.

It is suggested that the worcls ""as if "" used in Section 250 do not necessarily imply that the whole procedure is incorporated. It seems to me that

if any limitation is to be made it is only such limitation as is required by the doctrine of mutatis'' mutandis and that is, as long as there is a provision

which is suitable for the class of cases to which the incorporated provisions are made applicable, the requirement of the procedure laid down

therein should be appropriated to that class of cases with as little variation as possible. I am therefore clear that the words in Section 422 "" and. to

such officer as the Local Government may appoint in this behalf "" are incorporated in Section 250 Clause (3)

The Public Prosecutor has invited my attention to Rule 60 of (he Criminal Rules of Practice which lays down who are the persons to whom

notice should be given u/s 422; and it is clear that in appeals against compensation orders the District Magistrate is the person to whom notice must

be given. This is the view taken by the learned Judges in Guruswami Naickeu v. Thirumurthi Chetly (1914) 27 M.L.J. 628. In that case the appeal

was heard by the Joint Magistrate and the Court pointed out that notice of the appeal should have been given under R. 60 to the District

Magistrate.

What the procedure of''the Distract Magistrate should be on receiving such a notice does not arise in this case because no notice was in fact

given to him, the reason being that he himself heard the appeal. It is unnecessary to say that when an officer is hearing an appeal judicially there is

no necessity for him to give notice to himself. It necessarily follows therefore that in this case there has been no breach of provision of Section 422

requiring notice to a particular officer and this objection therefore fails. This petition is therefore dismissed.