Vellayanambalam vs Solai Servai and Another

This is an application to revise the order of the joint 1st class Magistrate of Dindigul Division reversing the conviction and sentence passed by

the Stationary second class Magistrate of Nelakottai in Calender Case No. 144 of. 1914.

The complainant filed a complaint against the two accused who are the present counter-petitioners, charging them with offences under Sections

352 and 426 of the Indian Penal Code and Section 24 of Act 1 of 1871 (Cattle Trespass Act). The Stationary Sub-magistrate fined each of the

accused Rs. 15 for each of the offences and directed them to pay Rs. 5-4-0 as costs to. the complainant. An appeal was preferred and Mr.

Glasson the Joint Magistrate of Dindigul Division, reversed the conviction after going through the evidence and material, papers, as he was of

opinion that the case was not proved.

A preliminary objection has been taken by Mr. Jayarama Aiyar for the Respondents that no Criminal Revision Petition lies to set aside an order

of acquittal and that the only remedy in such cases is an appeal by the Government as provided for by Section 417 of the Criminal Procedure

Code. It has been argued that a private person has no locus standi'' in such cases and reference has been made to Thandavan v. Periannan ILR

(1890) M. 363 and Sinnu Gownden in re (1914) 26 M.L.J. 100 The right of a private party to prefer a revision petition against an order of

acquittal and the circumstances under which the High Court would interfere, if at all, have been considered in numerous cases. In Thandavan v.

Periannan ILR (1890) M. 363, it was held that an appeal. against an order of acquittal by way of revision was. not contemplated by the Criminal

Procedure Code and their Lordships refused to hear the petitioner''s counsel. The observations of Miller, J in the case of Sinnu Goundan in re

(1914) 26 M.L.J. 100 to the effect that to entertain proceedings by way of revision where an appear would lie from an acquittal u/s 417 of the

Code of Criminal Procedure is contrary to the spirit if not to the letter of Sub-section 5 of Section 439 of the Code of Criminal Procedure, also

support the view taken in Thandavan v. Periannan ILR (1890) M. 363. There are, however, numerous cases where the High Court has held that it

has power to interfere in revision although the powers were exercised within very narrow limits. I need only refer to Sukho v. Durga ILR (1879)

A. 448, Queen Empress v. Ala Baksh ILR (1884) A. 484, In re Aminuddin 24 A.j 316 Emperor v. Madar Baksh 25 A.K 128 Heera Rai v.

Framji ILR (1890) B. 319, Municipal Committee of Dacca v. Hihgoo Raj 8 C.D 895, Deputy Legal Remembrancer v. Kuruma Baistobi (1891)

C.D 164, Rupa Mandal v. Kishab Mandal (1907) 5 C.L.J. 462, Bellow v. Parker (19.03) C.W.N. 521, Rakhal Das Roy v. Kailash Banee

(1910) 11 C.L.J. 113, Kangali v. Rama Charon Bhaktacharjee 38 C.D 786, Ramjeevan Rai v. Milakh Barai and 18 C.W.N.684 Shaikh Bagu v.

Baika Singh (1914) 18 C.W.N. 1244.

The view taken by the Allahabad High Court in the cases reported in Sukho v. Durga ILR (1879) A. 448, and Queen Empress v. Ala Baksh

ILR (1884) A. 484, was that the court would not interfere on facts but only on, questions : of law apparent frorn the record. ,''In Heerabai y

Framji 15 B.K 349, their Lordships observed that though the High Court has power to review an order, of acquittal u/s 439,pfthe Code of

Criminal Procedure yet it would not ordinarily interfere with such an order in the exercise of its revisional jursdiction because an appeal can always

be made by the Local government against such an order u/s 417 of the Code and that it is open to the complainant to move the government if so

advised to appeal against the order. Though in some cases above referred to, the Calcutta High Court went further than the other courts as to the

extent of the scope of interference in such cases, the decision of the Chief Justice and Justice Fletcher in Farydar v. Kasi Chowdhri 19 C.W.N.

184 is to the effect that the power should be exercised only sparingly and when urgently demanded in the interests of public Justice. I entirely agree

with the remarks of Jenkins C.J. in the above case and while I am not prepared to hold that there is no power for the High Court to interfere in

revision, I am of opinion that applications by private parties ought to be discouraged and that the court should only interfere when it considers that

interference is urgently demanded in the interests of public justice. It seems to me that the court should not interfere with an order of acquittal

where the question is as to the appreciation of evidence or where there is no patent error or defect in the order of acquittal passed by the Lower

Court which has resulted in grave injustice. The mere fact that the High Court, if it was sitting as a Court of Appeal would have come to a different

conclusion on facts, is no ground for exercising revisional jurisdiction in petitions against order of acquittal.

Turning to the merits the chief ground urged before me is that notice did not go to the District Magistate as required by the Criminal Procedure

Code and rules of Criminal Practice and that consequently the reversal of the judgment of the 2nd Class Magistate by the Joint Magistrate was

erroneous. A report was called for as to the alleged want of notice to the District Magistrate and it appears that although notice was ordered by

the Joint Magistrate when he admitted the appeal, no notice was as a matter of fact served on the District Magistrate. The case has been argued on

both sides on the footing that notice did not go. Section 422 of the Code of Criminal Procedure enacts that, if the Appellate Court does not dimiss

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, and Section 423 of the Code of Criminal Procedure directs that the appeal shall be disposed of after hearing the appellant or his

pleader, if he appears, and the Public Prosecutor, if he appears. The practice in all these cases is for the notice of appeal to be served on the

District Magistrate and for the District Magistrate to instruct the Public Prosecutor to appear if, in his opinion, the case is a fit One for the Public

Prosecutor to appear and argue in support of the conviction. It very often happens that the District Magistrate does not think it worth while to

instruct the Public Prosecutor to appear. There can be no doubt that the action of the joint Magistrate in hearing the appeal when notice was, as a

matter of fact, served on the District Magistrate, is irregular, having regard to the provisions of Sections 422 and 423, of the Code of Criminal

Procedure. I do not think that the mere omission to serve notice of appeal on the District Magistrate is anything more than an irregularity and do

not agree with the arguments of the Petitioner''s Counsel that the proceedings are ab initio void.

Mr. P.R. Grant, who appeared for the Public Prosecutor, states that he has no instructions to urge for a reversal on the ground that the District

Magistrate had no notice and I must take it that so far as this case is concerned, the District Magistrate does not consider that the interest of Justice

have suffered owing to his not having received notice of the appeal.

I have gone through the records and do not think that any grounds exist for the exercise of the revisional powers of the High Court.

The Petition fails and is dismissed.