SOMAN MUKHIA Vs. AJODHYA MUKHIA

JUDGEMENT

(1.) This application by a private party for re-vising the order of acquittal recorded by an appellate Court has been heard by us in our criminal revisional jurisdiction on a reference made by a single Judge of this Court. The learned single Judge was of the view that the appellate Court had not dealt with the evidence of a single witness, though it had undoubtedly stated in its judgment that it had closely scrutinised the statements of the witnesses. The appellate Court's judgment, it was further observed, did not also disclose any reason for not accepting the statements of the witnesses and a doubt was expressed as to whe-ther it was a judgment in accordance with law within the meaning of Section 367 of the Code of Criminal Procedure. The learned Judge, however, referred the case to a Division Bench as he was confronted by two decisions of this Court, in one of which, in somewhat similar circumstances, a single Judge had declined to interfere with the order of acquittal while in the other another single Judge had set aside the order and sent back the case for re-hearing according to law. In the former case Gulzar Chamar v. Ug-gam Chamar, AIR 1952 Pat 342 (A), Rama-swami, J. (as he then was), expressed the view that an application in revision by a private party against an order of acquittal could not be entertained except on some broad ground of exceptional requirement of public justice. The learned Judge further observed that the fact that the lower Court had not adequately discussed the prosecution evidence as to how the occurrence took place or how it reached the finding that the accused had acted in the right of private defence was not such a ground as to come within the rule of exceptional requirement of public justice. The other case referred to by the learned referring Judge is the case of Raghunandan Bhagat v. Prabhu Singh, 1943 Pat WN 12 (B), decided by Rowland, J. In that case it was held that where the appellate Magistrate had not directed his mind to the evidence and circumstances on the record in a manner in consonance with the proper exercise of discretion, the appellate judgment of acquittal should be set aside and the appeal should be ordered to be reheard in accordance with law.

(2.) The facts shortly arc these. Two persons Soman Mallah and Badri Mallah took settlement of a ghairmazrua am tank from the proprietor of the village, one Bishambhar Babu, and grew makhana in it The allegation was that on 22-4-54 the opposite party came in a mob with the common object of destroying the makhana crop and uprooted the makhana plants. They are also said to have committed theft of some bundles of wheat belonging to the proprietor which had been kept at a place near the tank. The opposite party denied the occurrence and alleged that they had been implicated falsely as there was ill-feeling between the parties. They stated that they had uprooted a few plants of makhana only with a view to take water to their neighbouring fields for purposes of irrigation.

(3.) The learned Magistrate found that the Khalian showed that the tank had been recorded as a ghairmazrua am plot, but it did not indicate what right the villagers had to the use of the tank. He also referred to the evidence of the defence witnesses who stated that the landlords had never objected to anybody using the tank in any way he liked. On behalf of the opposite party it was contended before him that the landlord had no right to grow makhana plants and to enjoy the sale proceeds to the detriment of the irrigational and other rights of the villagers. The learned Magistrate, however, thought that the question raised was one which could only be decided by the Civil Court and was outside the jurisdiction of the Criminal Court. Regarding the rights of the tenants he remarked :