Raja v Gopal (Cr. Rev. Case No. 32 of 1936) [1936] EACA 135 (1 January 1936)

## **CRIMINAL REVISION**

## Before SIR JOSEPH SHERIDAN, C. J., and WEBB, J.

## CHHAGAN RAJA, Applicant $\boldsymbol{\nu}_\cdot$

## GORDHAN GOPAL. Respondent Cr. Rev. Case No. 32 of 1936

Criminal Procedure—Revision—Case stated—Criminal Procedure Code, Secs. 349, 353, 354.

The applicant, as a private prosecutor, charged the respondent (1) with having in September, 1935, in India, procured a female under the age of 21 years, not being a common prostitute or of known immoral character, to have unlawful carnal connexion with himself both in India and in Kenya, contrary to section 130 (1) of the Penal Code, and (2) with having procured the said female to have unlawful carnal connexion with himself both in India and in Kenya by false representations made to her in India, contrary to section 131 (2) of the Penal Code.

The Resident Magistrate held that on the face of the charge it appeared that no offence had been committed within his jurisdiction and discharged the respondent. The appellant applied to the Supreme Court in revision for an order directing the Resident Magistrate to hear the case on the merits.

Held (30-5-36).—That the exercise of jurisdiction in revision is discretionary, and that no order in revision should be made seeing that the applicant had a remedy by way of case stated.

Phadke for the applicant. Trivedi for the respondent.

JUDGMENT.—The jurisdiction of the learned Resident Magistrate in this case depended on whether the offences complained of were completed within his jurisdiction. He came to the conclusion in a reserved judgment that they were completed in India and therefore made an order discharging the respondent. We are asked to set aside that order in our revisional jurisdiction. Because of the order we are about to make we refrain from expressing any opinion as to the correctness or otherwise of the learned Magistrate's decision. Mr. Phadke for the applicant, first argued that revision was his only remedy and relied on the case of Foss v. Best (1906 2 K. B. 105) as an authority for his contention that a remedy by way of case stated did not lie. On its being pointed out to him that in that case s. 33 of the Summary Jurisdiction Act, 1879, did not apply for the reason that the Justices were not exercising summary jurisdiction but were taking depositions for the purpose of committing a prisoner for trial, he abandoned his contention and fell back upon the argument that, even though there were power to ask to have a case stated, he should be allowed to proceed by way of revision. The exercise of revisional jurisdiction is discretionary and in our view, and particularly in the circumstances of this case which was a trial (not an inquiry) based on a private prosecution, the Attorney General having declined to prosecute, no order should be made in revision while there exists a remedy by way of case stated. The applicant is granted an extension of 14 days from this date to avail himself of such remedy, should he so desire.