- (1.) We think that the order of the Magistrate dated the 16th of July 1868, and the warrant issued thereon ought to be set aside. The petitioner, against whom the warrant was issued, was the lessee of the tolls to be collected at a certain toll-gate. Certain arrears of rent payable under the lease being unpaid, the Magistrate issued a summons for the appearance of the petitioner. It does not appear, on the face of the summons, under what law the Magistrate was proceeding; but the summons recites that a complaint having been preferred against the petitioner for the offence of not paying the sum of Rupees 262 for arrears of rent, the petitioner was summoned to appear before the Magistrate to answer the charge. From the use of the word "offence," it would seem that the Magistrate was treating the case as one of a criminal, and not of a civil nature. The petitioner did not appear in pursuance of the summons; but he sent a kaifiat to the effect that the road having been out of repair and carriages and passengers having been unable to pass along it, he had been unable to collect the tolls in respect of which the rent was payable. Upon that the Magistrate made the order in question. The order is in these words: "Since the debtor has not appeared in person, he has thereby disobeyed the order of the Court; therefore, it is ordered that a warrant be issued to arrest the defendant;" and a warrant was issued accordingly.
(2.) It does not appear, on the face of the order, under what provision of law the Magistrate was acting in ordering a warrant to be issued for default of appearance according to the terms of the summons. The only law of which I am aware which could give any colour of justification for the issue of the warrant, is Section 73* of the Code of Criminal Procedure, which authorizes a Magistrate, after default made to a summons, to issue a warrant of arrest against the person summoned.
(3.) If the order was made and the warrant issued under the provisions of the Code of Criminal Procedure, this Court, under the power of revision vested in it by Section 404, may set aside the proceedings for an error in law.;