DUTIA PATEL Vs. STATE

JUDGEMENT

(1.) PROSECUTION case is that on 11 -5 -64 at about 11 A. M. the Sarpanch (P. W. 1) of village Kamthana Gram Panchayat, the Naib Sarpanch (P. W. 2) and the President (P. W. 8) of the Grain Gola issued tickets for catching fish from a Kata in village Borbhata. The petitioners amongst others purchased tickets and entered inside the tank for catching fish. They were not able to catch fish and demanded return of the money paid for the tickets from P. W. 1. On his refusal to return the money back, the petitioners surrounded him and abused in filthy language saying :

(2.) EIGHT witnesses were examined for the prosecution. The learned Magistrate, after thorough discussion of evidence, found the six petitioners guilty under Section 294, I. P.C. and sentenced each of them to pay a fine of Rs. 50, in default, to undergo R. I. for 20 days. He directed that Rs. 200/ - was to be paid to P. W. 1 out of the fines, if realised. Against the judgment of the learned Magistrate, the petitioners filed a criminal revision before the learned Sessions Judge, Bolangir Kalahandi, who has made the reference for quashing the conviction.

(3.) IT would thus appear from the aforesaid analysis of the judgment of the learned Sessions Judge that on discussion of evidence he disbelieved major part of the abusive language used by the petitioners, and on the basis of the residue he came to the conclusion that the words used were merely vulgar abuses and did not make out any offence under Section 294, I. P.C. This approach of the learned Sessions Judge necessitates a thorough examination of the jurisdiction of the Court under Section 438, Criminal Procedure Code Under Section 485, Criminal Procedure Code, the High Court or any Sessions Judge or District Magistrate, or any Sub -Divisional Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court for the purpose of satisfying itself or himself as to correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of the proceeding of such inferior Court. Under Section 438, Criminal Procedure Code, the Sessions Judge or District Magistrate may, if he thinks fit, on examining under Section 435 or otherwise the record of any proceeding, report for the orders of the High Court. Thus on the plain language of Sections 435 and 438, read together, the Sessions Judge or the District Magistrate has been vested with powers to make a report to the High Court regarding the correctness, legality or propriety of the finding of a subordinate Magistrate. The reference is thus not confined merely to the question of law, but has been extended to an examination of the correctness or the propriety of the finding which necessarily involves the concept of an examination of the materials on record relating to facts. Under Section 296, Criminal Procedure Code, 1882, reference was permissible only when the Court was of opinion that the judgment or order was contrary to law, or that the punishment was too severe or inadequate. On the law, as it then stood, the decisions were to the effect that reference could not be made unless it involved a point of law. It could not be made on the ground of insufficiency or incredibility of the evidence. The Legislature, however, has made material alterations in the Code of 1898. It is for this reason some High Courts are of the view that under the present Code, a reference may also be made when the order is against the weight of evidence. Despite material alteration in the power for reference, the consensus of opinion amongst the High Courts is that the jurisdiction to make a reference must be read in the context of the powers exercised by the High Court in its revisional jurisdiction under Section 439 (1), Criminal Procedure Code