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Madras High Court
H.J.E. Maccarthy vs Lord Shannen on 7 October, 1927
Equivalent citations: AIR 1928 Mad 135
Author: Devadoss


Devadoss, J.

1. This is an application by the complainant to revise the ‘ order of the District Magistrate of the Nilgiris dismissing his complaint of robbery. The contention of the complainant is that he was the owner of a car and he was in possession of it for over two years and that the counter-petitioner forcibly took the car from his possession and thereby committed robbery. The learned District Magistrate after examining the complainant on oath sent for some records from the police and for some records from a private individual, perused them and came to the conclusion that the counter-petitioner acted under a bona fide claim of right and, therefore, no offence was committed by him. It does not appear from the records, nor is it suggested by Mr. Smith who appears for the counter-petitioner, that the complainant was given an opportunity to meet the evidence that was available before the Magistrate to disprove the statements made in the complaint. It is open to a Magistrate to hold a preliminary enquiry under Section 202, Criminal P.C. but in holding such enquiry if evidence which is opposed to the complainant’s allegations is brought before him he should give opportunity to the complainant to explain or to meet such evidence. In this case such a procedure was not adopted. The District Magistrate satisfied himself by looking at certain records that the counter-petitioner acted bona fide. At this stage of the case, I decline to discuss the question of law whether an act which is done under colour of right would or would not come within the purview of Section 379, I. P.C., for that depends on facts and as any observation of mine on facts might prejudice one side or other I carefully refrain from doing so. The District Magistrate not having disbelieved the complainant’s version and the sworn statement he should have given him an opportunity to prove his case. This he has not done. On this solo ground I think the order of the District Magistrate should be set aside. I, therefore, set aside the order of the District Magistrate and direct that the case be enquired into by a Magistrate outside the Nilgiris. The District Magistrate of Coimbatore to whose file it is transferred will enquire into and dispose of it according to law.

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