STATE Vs. AZIZ GOJRI

JUDGEMENT

(1.) THIS revision is directed against an order dated 26 -3 -1979 passed by the Forest Magistrate, Srinagar whereby he has dismissed a complaint under Section 5 of the Kuth Act and under Section 6 of the Forest Act, in default of appearance of the complainant and acquitted the accused.

(2.) LEARNED counsel for the respondent has raised a preliminary objection in regard to the maintainability of this revision on the ground that the order of acquittal was an appealable order. Learned counsel for the State refused to concede the objection. He urged that undoubtedly an order of acquittal is appealable but there is nothing to prevent the High Court in revision to set aside the order. In support of his argument, he has relied upon a decision of the Supreme Court in K. Chinnaswamy Reddy Versus State of Andhra Pradesh and anr, (A. I. R. 1962 S. C. 1788) wherein it has been held that it is open to the High Court in revision to set aside the order of acquittal even at the instance of a private party though the State may not have thought it fit to appeal but this 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 mis -carriage of justice.

(3.) IN the present case, the offence under Section 5 Kuth Act, is non -compoundable and cognizable offence and the case was triable as a warrant case. It is common ground that such a case could not be dismissed in default of appearance of the complainant. Thus the order passed by the trial magistrate is manifestly illegal order and, if I may say so an order without jurisdiction. This is a fit case in which this court should exercise its revisional powers to correct the mistake. The preliminary objection is, therefore, over -ruled.