STATE Vs. ALAKH NARAIN SINGH

JUDGEMENT

(1.) This is a reference by the Third Additional Sessions Judge, Patna, recommending that an order of acquittal passed by Mr. S. M. Ozair, Judicial Magistrate, Dinapur, in a case under Section 144, Penal Code be set aside.

(2.) The occurrence giving rise to the case had taken place on 11-5-1950 at a place called Bikram Hat near Bikram police station. Several persons were found shouting and brandishing their weapons and on hearing the shouts the officer in charge of the Bikram police station went to the spot and ordered them to disperse. This order was disobeyed, and the ring-leaders were arrested. Fourteen persons were put on trial under Section 144, Penal Code, and on 27-12-1950 a petition was filed by the Assistant Public Prosecutor praying that the case be split up and there be two separate trials each directed against one set of accused persons who formed one party. This application was rejected by the learned Magistrate. But on 6-4-1951 the learned Magistrate acquitted the accused persons on the ground that their joint trial was illegal. The learned Sessions Judge has recommended that the order of acquittal be set aside, firstly, on the ground that the learned Magistrate should not have rejected the Assistant Public Prosecutor's prayer for the splitting of the case into two parts on 27-12-1950, and, secondly, on the ground that there is no find- ing by the learned Magistrate to the effect that the accused are not guilty.

(3.) It is true that though the learned Magistrate refused to accede to the prayer of the Assistant Public Prosecutor for splitting up the case in December, 1950, in April 1951 he acquitted the accused persons on the ground that a joint trial of all of them was not permissible. The question which arises for our consideration, therefore, is whether in the circumstances this is a fit case in which we should exercise our revisional jurisdiction. Before I discuss the question of law which has been canvassed before us, I should like to point out that the state have not been quite vigilant so far as this case is concerned. If the order dated 27-12-1950 was not a proper order, and prima facie it does appear that that order was not a proper order, then it was certainly open to the state to move the higher Courts against that order. Even against the final order which was passed by the learned Magistrate on 6-4-1951 the Sessions Judge could not be moved by the State before 3-8-1951. I have already stated that the occurrence had taken place on 11-5-1950. Though several persons arrayed on two opposite sides had been seen brandishing weapons in Bikram Hat, there was no assault, and therefore the only section of the Indian Penal Code under which those persons were prosecuted was Section 144. If the State was very kesji for bringing to bock the "persons who had constituted the unlawful assembly, they should have acted quite promptly, and apart from what I have pointed out above, it was open to the State to file an appeal against the acquittal that was recorded by the learned Magistrate on 6-4-1951. No appeal was preferred by the State, and there was considerable delay in moving the learned Sessions Judge against the order of acquittal. Because there was no appeal preferred against the order cf acquittal, Sub-section (5) of Section 439 would come into operation, and this sub-section lays down that where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed. The learned Standing Counsel submitted a fair argument in the case, and he conceded that the State being a party it ought to have appealed against the order of acquittal passed by the learned Magistrate on 6-4-1951. But the learned Standing Counsel submitted that Sub-section (5) would not operate as a bar in this case because there has been a reference or a recommendation by the Additional Sessions Judge. In my opinion, it makes no difference if our revisional jurisdiction has to be exercised on a reference made by the learned Additional Sessions Judge. Sub-section (5) will operate as a bar even if the State instead of coming to this Court direct has come through the Additional Sessions Judge and on a reference made by him. It is needless to point out that the Sessions Judge makes a reference to the High Court only to enable it to exercise its powers of revision. And if there is a legal bar to the exercise of the powers of revision by this Court, then the reference by the Sessions Judge recommending the exercise of the powers of revision will not remove that legal bar. In fact, the Sessions Judge could himself have rejected the application in revision filed before him on the ground that because an appeal lies and no appeal had been brought, he could not recommend to the High Court for the exercise of its revisional powers. But, even if this was not done, it seems manifest that simply because of a reference, the High Court cannot, in spite of the provisions contallied in Sub-section (5) of Section 439, exercise its revisional powers in a case in which an appeal lay but was not brought. It is to be noted that it is not a third party who is moving this Court by way of revision, but it is the State itself which was aggrieved by the order of acquittal passed by the learned Magistrate on 6-4-1951. The learned Standing Counsel has cited some decisions in support of his view that when it is a case of reference the High Court can exercise its revisional powers in spite of Sub-section (5) of Section 439. One of the cases cited by the learned Counsel is the case of -- 'Emperor v. Sukhdeo', A. I. R. 1916 AIR 316 (A) in which one Sukhdeo had been ordered by a Magistrate to furnish security to be of good behaviour under Section 112, Criminal P. C. The order was an appealable order, but Sukhdeo had preferred no appeal against that order. He submitted to the order and offered a security bond executed by two persons who were willing to stand surety for him. The Magistrate refused to accept those two persons as sureties and Sukhdeo then applied to the Sessions Judge asking him to examine the record and, if necessary, to invoke the interference of the High Court. It was then that the learned Sessions Judge examined the records, and on examination of the record he found that the proceedings before the Magistrate had been altogether irregular and that Sukhdeo had been bound down without any enquiry. On these facts a Single Judge of the Allahabad High Court thought that an interference was necessary. I do not think this ruling can be cited as an authority in this case before us in support of the contention that Sub-section (5) will not be taken to be a bar whenever there is a reference by the Sessions Judge. Two cases of the Lahore High Court were also cited by the learned Standing Counsel, and they are -- 'Nathu Mal v. Abdul Haq', AIR 1930 Lah 159 (B) and -- 'Pars Ram v. Emperor', AIR 1931 Lah 145 (C). In the latter case, the petition of revision had been filed by a third person who was an Advocate, and so far as the former case is concerned it is not clear who had moved the Sessions Judge. The learned Standing Counsel, however, cited a case of the Oudh Chief Court, -- 'Emperor v. Ram Deo', AIR 1942 Oudh 443 CD) which, in his opinion, was a direct case in point. This is also a decision by a Single Judge, and though Sub-section (5) of Section 439 was referred to in this case, I say with the greatest respect, that its implications were not fully considered. Even from the Oudh Chief Court there is a later decision reported in --'Gogey v. Emperor', AIR 1945 Oudh 20 (E), where it was distinctly pointed out that when the Sessions Judge makes a reference to the High Court to exercise its powers of revision, the provisions of Sub-section (5) must be applied if they are found applicable. The view taken in this later Oudh case does not support the view of the learned Standing Counsel, and if I am permitted to say so, it does not also support the view taken in the other Oudh case decided by Agarwal J. The learned Standing Counsel also referred to a Bombay decision which was a Division Bench decision reported in -- 'Emperor v. Kamal Dattatraya', AIR 1943 Bom 304 (F). In this case there is no discussion as to the applicability or otherwise of Sub-section (5) of Section 439, there being only a general observation to the effect that there are good many instances in which applications in revision, made on behalf of a party who has not appealed, have been entertained, and that on that principle the application before their Lordships should be entertained. Here, as I have already pointed out, it is the party (the party in this case being the State) which is moving this Court to exercise its revisional jurisdiction. This Bombay decision also does not, therefore, really support the contention urged before us by the learaed Standing counsel. On the other hand, there are several Division Bench decisions which have laid down not only that the revisional powers should be sparingly exercised but that Section 439(5) is a bar to the party, who had the right of appeal, moving the High Court in revision. In -- 'Emperor v. Jamnadas Nathji', AIR 1937 Bom 153 (G), their Lordships of the Bombay High Court relying on Section 439(5), Criminal P. C. held that the revisional power of the Court could not be exercised, even though there had been an illegal conviction of the accused by a second-class Magistrate who had no jurisdiction in the matter. In -- 'Fauzar Thakur v. Kasi Chowdhury', AIR, 1915 Cal 388 (H), Jenkins C. J. pointed out that the pronouncements of the High Courts of Madras, Bombay and Allahabad consistently support the view that as a general rule it is expedient not to interfere on revision at the instance of a private person, with an acquittal after trial by the proper tribunal, and that an application for that purpose should be discouraged on public grounds. His Lordship did observe that though the Court has jurisdiction to interfere on revision with an acquittal, this jurisdiction should be exercised sparingly and only when it is urgently demanded in the interests of public justice. I have already pointed out that in this case the State was not quite prompt in taking action against the orders of the Magistrate which were considered illegal. And the occurrence, if it can at all be called an occurrence, was of a very simple nature. Probably, because of the petty nature of this occurrence the State was not prompt in taking action and in moving against the orders of the learned Magistrate which it now regards as illegal and improper. In this Calcutta case there had been a difference of opinion between Jenkins C. J. and Teunon J. and the matter came for consideration before Fletchcr J. who observed that the rule laid down by Jenkins C. J. and in several other cases by other High Courts is founded on grounds of public interest and convenience and ought to be adhered to. This Calcutta case was followed by a Full Bench of the Madras High Court reported in -- 'Sankaralinga Mudaliar v. Narayana Mudaliar', AIR 1922 Mad 502 (I) and the observation of Jenkins C. J. was quoted with approval. We have now got two decisions of the Supreme Court which, in my opinion, fully solve the question which has been raised before us. In --'D. Stephens v. Nosibolla', AIR 1951 SC 196 (J), their Lordships laid down that the revisional jurisdiction conferred on the High Court under Section 43a is not to be lightly exercised when it is invoked by a private complainant against an order of acquittal against which the Government had a right of appeal under Section 417, and that such revisional jurisdiction should be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice. His Lordship Chandra Sekhara Aiyar j. further observed that this jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on record. The other decision of the Supreme Court is reported in -- 'Logendranath Jha v. Polai Lal', AIR 1951 SC 316 (K) in which their Lordships laid down that though Sub-section (1) of Section 439 autho rises the High Court to exercise, in its discretion, any of the powers conferred on a Court of appeal by Section 423, Sub-section (4) of Section 439 specifically excludes the power to convert finding oi' acquittal into one of conviction. Though this is a direct decision only with regard to Sub-section (4) of Section 439, Criminal P. C., I think the view expressed by their Lordships is equally applicable to a case which comes within, the purview of Sub-section (5) of Section 439, Criminal P. C. Sub-section (4) says that nothing in this section applies to an entry made under Section 273, or shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. The word 'shall' is especially to be noted. And while Sub-section (4) is in these terms, Sub-section (5) is in the following terms: "Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed". In this sub-section also the word 'shall' has been used, and I think there is ample justification for the view that if this Court cannot exercise its powers under Section 439 for converting a finding of acquittal into one of conviction, it cannot also by way of revision interfere with an order of acquittal, if no appeal is brought by the State. On the principles indicated by their Lordships in the case of -- 'AIR 1951 SC 316 (K)', Sub-section (5) must be treated as a bar to the exercise of the revisional power by this Court in this particular case when the State did not prefer any appeal against the order of acquittal passed by the learned Magistrate. In the circumstances, I am of the opinion that this reference must be discharged.