Abdul Manir vs Kadir Khan and Others

Rowland, J.—This is an application to revise a judgment and order of acquittal by a Magistrate of the First Class. The proceedings were instituted on a complaint by Shaikh Abdul Hamid alleging that the accused persons had assaulted him in consequence of a dispute regarding fruits of a toddy palm which Hamid claimed to be in his exclusive possession, while the accused claimed that it was the joint property of Hamid and his brothers. The complainant died on 26th September 1935, the trial at that date being still pending. The question having then arisen whether the accused should be charged u/s 304, I.P.C. (the original complaint was u/s 323) the District Magistrate transferred the case from the Second Class Magistrate before whom it was pending to the file of the Sub-divisional Officer, Sadr, who framed a charge u/s 325, I.P.C. against five persons, namely, Abdul Halim, Sharafat Khan, Kadir Khan, Mahfuz Khan and Shaikh Ismail. A charge was not framed u/s 304, because the medical evidence did not establish that the injuries inflicted on Abdul Hamid had been the cause of death. The Magistrate acquitted all the accused on the 27th January 1936, thinking that the exclusive possession of Hamid over the tree was not established; that those accused who assaulted him might have had a right of private defence; and that they should get the benefit of the doubt. Thereafter Abdul Manir, brother of the deceased complainant, moved the District Magistrate to direct a commitment to the Court of Session on a charge u/s 304, I.P.C. The District Magistrate considered this and two possible alternatives: to move the Government to appeal u/s 417, or to refer the case to the High Court; in revision. In the end he has declined to do either of these things.

Accordingly the petitioner Abdul Manir has moved this Court. I have obtained much help from the District Magistrate''s careful examination of the case. It clears those points which may be said; to be-beyond contest or not fit to be raised in revision or settled by the findings arrived at and brings out in relief the point, and there is only one point, on which the petitioner can hope to succeed in revision. I entirely agree with the District Magistrate that to order a commitment u/s 304, I.P.C., cannot be contemplated. The District Magistrate''s examination of the evidence further shows that as regards Ismail and Mahfuz, whose presence at the place of occurrence the trial Court considered doubtful, there is no reason to interfere as they would be ordinarily-entitled to the benefit of the doubt as to their presence. The District Magistrate''s order also clearly exposes the error into which the trying Magistrate fell. This; consisted in thinking that because the exclusive possession of Abdul Hamid over the fruits of the trees was not clearly established the accused whose claim was that Hamid''s brother, Abdul Alia, was jointly entitled to the fruits with Hamid, were entitled to set up the right of private defence as authorizing them to beat Hamid and to be given the benefit of a doubt as to whether the right of private defence existed or not. As the District Magistrate rightly points out, u/s 105, Evidence Act, when a question arises whether an accused person is entitled to the benefit of any of the general exceptions in the Indian Penal Code the burden of proof is on him and the Court is to presume the absence of circumstances bringing him within any of those exceptions; that is to say, it was for the accuseds to prove that Abdul Hamid had not exclusive possession of the palm tree; to prove-that Hamid was not acting in exercise of a bona fide claim of right but was committing a criminal offence of one of the descriptions mentioned in Section 97 secondly of the Penal Code, that is to say, theft, robbery, mischief, or criminal trespass; to prove that the accused were defending their property against such an offence; and lastly, to prove that they did not exceed the right of private defence.

Even assuming that all the earlier points were answered in favour of the accused (and the questions raised have not been examined at all), the last point certainly required very careful consideration in view of the fact that Hamid had no fewer than thirteen injuries, while on the other side one person was injured and that was Sharafat who had two injuries only. Mr. Khursaid Husnain for the opposite party has drawn my attention to certain cases in which reference is made to the general practice of not interfering in revision with orders of acquittal. Such an interference by the High Court is reserved for exceptional circumstances and for cases in which there appears to have been a failure of justice due to some error in a matter of principle, but no hard and fast rule has been laid down in any of the decisions or in my opinion can be laid down. In the present case the trying Magistrate has failed to appreciate the questions of fact which he had to determine in order to adjudicate on the plea of right of private defence and therefore there has been no proper trial of these ''questions. That being so, there should be a re-trial of Halim, Sharafat and Kadir and the order acquitting these three accused is set aside. As regards the other accused I do not think that any interference is called for.

In allowing this application I wish expressly to negative any suggestion that allowing the application implies that the District Magistrate erred in refusing to make a reference. I entirely agree with the following observations of Rankin, J. in Fakir Chand Mondal and Others Vs. Madar Mondal and Others, , in which he deprecates the making of unnecessary references:

Even if it should appear from the judgment of the Magistrate that there is an error of law, � references should not be made unless it appears that the error of law is of such a character as to call for interference by a higher authority.

Where the District Magistrate or Sessions Judge merely differs from the first Court''s appreciation of facts, or where he suspects an error of law, then, unless the error of law is manifest, unless the case involves a matter of principle, and unless there has been a serious failure of justice, unless in short he is clearly of opinion that the public interest demands that there should be intervention by the High Court, he is under no obligation to refer the case. Where the only interests affected are those of private parties he will more often do better by leaving the party aggrieved to pursue his remedy by an application to the High Court. The High Court has ample powers in revision and the widest possible discretion, and if the High Court eventually allows such an application it is not thereby implied that the District Magistrate or Sessions Judge ought to have made a reference. In the present instance the District Magistrate, observing an error of law but being doubtful whether it called| for the High Court''s interference, rightly abstained from making a reference and'' left it to the party to move this Court. I'' would commend his example to others.