IN RE: HARBHAJAN SINGH SODHI Vs. STATE

JUDGEMENT

(1.) THIS case arises on a report made by the Sessions Judge, Wardha, under Section 438, Criminal P.C. The applicant Harbhajan Singh Sodhi, formerly Divisional Forest Officer, South Chanda Division, has been charged with offences of the abetment of theft of forest produce punishable under Sections 379 and 26(f), Forest Act, both read with Section 109, Penal Code. After the charges were framed by the Special Magistrate, Wardha, he moved the Sessions Judge for quashing them on the ground that the evidence on the record was insufficient to sustain the charges. The learned Sessions Judge on examination of the evidence was of opinion that the facts elicited in the case did not disclose any offence, although they indicated negligence. He has accordingly made this reference with a recommendation to quash the charges. There is no doubt on the authorities that the High Court has power to interfere in revision with a pending case. Section 439, Criminal P.C., gives wide powers of control over the proceedings of the inferior Courts, but that is an extraordinary power which, by its very nature, imposes grave responsibility on the High Court of exercising it with due circumspection, to avert miscarriage or ptfomote the ends of justice. That is a residuary power which being of a discretionary character is incapable of precise and rigid definition. The High Courts do and have interfered in cases where there is a material error or defect in law or procedure, misconception or misreading of evidence, failure to exercise or wrong exercise of jurisdiction or where the facts admitted or proved do not make out any offence. But the revisional authority extensive as it is rarely travels beyond the region of law or procedure to correct errors in decision on the facts. Where its exercise is called for in a pending case, Section 439, Criminal P.C., must be read in conjunction with Section 435, Criminal P.C. That section authorises the superior Courts to call for and examine the proceedings of any inferior Court before or after their termination for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order or as to the regularity of any proceeding.

(2.) IN a pending case no question as to the correctness or propriety of a finding can arise; consequently the superior Court can examine the proceedings of the inferior Court only to satisfy itself as to their regularity. In Choa Lal Dass v. Anant Pershad Misser (98) 25 Cal. 233, Harendra Nath Das v. Jyotish Chandra Datta , Ramanathan Chettiyar v. Subramanian Ayyar A.I.R. 1925 Mad. 39, In re Shripad Chandavarkar A.I.R. 1928 Bom. 151 and other cases the principles ' justifying interference with pending proceedings have been laid down. In Emperor v. Krishnarao A.I.R. 1924 Nag. 47 and Abdul Rahim v. Emperor these principles were applied with reference to the particular circumstances of those cases. The observations made in those cases have to be understood in the light of the provisions defining the superior Court's power of interference contained in Section 435, Criminal P.C. The only question material for consideration in this case is: whether the proceedings in the criminal Court after the charge are regular. They would not be regular if the facts sought to be proved do not constitute an offence. Continuation of such proceedings would therefore manifestly be but an abuse of the process of the Court and a harassment of the accused on trial. In such circumstances, considerations of justice themselves dictate the terrnination of proceedings. "Where however the facts alleged and sought to be proved do constitute an offence and the decision turns on the credibility of witnesses and inferences to be drawn after a close and critical examination of the documentary evidence, it can not be gainsaid that interference by the High Court with the proceedings of the inferior Court which under the law has the jurisdiction to decide in the first instance would amount to an improper and illegitimate use of its revisional authority. This case clearly falls under the latter category.

(3.) THE omission to call for the trying Magistrate's explanation aggravates the irregularity of reference which is virtually on, points of fact. That irregularity vitiates the reference and makes it unacceptable. The learned Counsel for the applicant addressed an able and vigorous argument with special emphasis under Section 270(2), Government of India Act, in support of the reference but it was no more free than the reference itself from controversy on the points of fact such as would fall within the ambit of appeal rather than revision. As to the merits, nothing more need be said than that this case is not of a kind which would warrant interference with the normal course of the trial. The reference is discharged.