RAMASIS THAKUR Vs. EMPEROR

JUDGEMENT

(1.) Under the provisions of Section 438(1), Criminal P.C., the District Magistrate has referred to this Court the conviction under Section 380, I.P.C. and sentence of three months rigorous imprisonment and fine of Rs. 25 passed by a Magistrate of the second class on one Ramasis Thakur, which he himself upheld in appeal. Ramasis Thakur was convicted along with two other persons named Bengali Tiwari and Bhajju Gop. The appeal of Bengali Tiwari was sustained on 26 July last and he was acquitted. Ramasis Thakur appealed from jail and his appeal was dismissed on 3 August in a judgment covering three closely typed pages. The appeal of Bhajju Gop was heard on 15 August and he was acquitted. Having therein arrived at the opinion that his order dismissing the appeal of Ramasis Thakur was erroneous, the District Magistrate has referred the matter to this Court.

(2.) Notice has been issued to the Crown and I have had the advantage of hearing the learned Assistant Government Advocate. He is, in my opinion, correct in the view that the reference is itself incompetent. Section 438(1) appears to contemplate action by the Sessions Judge or District Magistrate upon examination of the proceedings of a subordinate Court. It does not apparently authorize the Sessions Judge or Magistrate to refer his own order with a recommendation that it be altered. Manifestly, if such a reference could be made, the recommendation might just as well be to convict an appellant who had been acquitted as to acquit an appellant whose conviction had been upheld.

(3.) It remains to consider whether this Court should take action under the provisions of Section 439, since the proceedings have come to the knowledge of this Court. Now, the principle upon which this Court has acted from the outset is that in revision it is necessary, in order to get a conviction set aside, to show that it is wrong. Ordinarily the Court will not go into the facts at all unless the conscience of the Court has been touched in regard to them. This was the view taken by Chapman, J., in Ram Kishun Missir V/s. Emperor (1917) Cri LJ 915 and so far as I am aware, it has been consistently followed throughout the whole history of the Court.