EMPEROR Vs. UMAKANT BALVANT

JUDGEMENT

(1.) THE evidence recorded by the Magistrate in accordance with the remand order of this Court leaves the case, in my opinion, where it was before the remand and the result is that we must look to the finding of the Magistrate and see whether he has distinctly found proved against the present petitioner the essentials of the offence of abetment of false personation by the petitioner's brother Balkrishna. All that the Magistrate has found is that "the accused intended that Bal-krishna should do the work if called on." That is not enough. Before the petitioner could be convicted of abetment the Magistrate should have found that the petitioner had asked Bal krishna not only to do his (petitioner s) work as Kulkarni of the village but also to falsely personate the petitioner and represent to the Assistant Collector that he (Balkrishna) was the Kulkarni. THEre is no such finding. No doubt the Magistrate also says :-"It is also proved and admitted that even after he" (i.e. the present petitioner) "did arrive when the call was made for the Ving Kulkarni, he allowed Balkrishna to go forward ". But the mere fact that when the Ving Kulkarni-an office which the petitioner held-was called, the petitioner stood by and did not interfere when Balkrishna went forward, is not sufficient in law to show that the petitioner had instigated Balkrishna to falsely personate him. It means that he allowed Balkrishna to go and do his work. But that is not a finding that there was any abetment of false personation. Though what the Magistrate has found proved upon the evidence does not go as far as was necessary for the purposes of the petitioner's conviction of the offence charged against him, yet there is his finding in conclusion that the petitioner is guilty of abetment. And the learned Government Pleader has endeavoured to support that finding by referring to certain evidence in the case and has argued that this Court acting in its revisional jurisdiction should not interfere with a finding of fact of the lower Court. Our revisional jurisdiction is so wide that we can upset the finding of fact of a lower Court by examining the evidence, but as was held by Kemball and Pinhey JJ. in Queen Empress V/s. Shekh Saheb Badrudin (1883) I.L.R. 8 Bom. 197 the practice of this Court is not to interfere with a finding of fact unless there are special reasons. That ruling has been invariably adopted by this Court. According to that practice-which has been established for several years in this Court and is supported by the decision just cited in cases in which the law allows no appeal-this Court as a Court of Revision will not, except on the ground of an error of law or where the question is one of evidence on exceptional grounds, exercise the power of an appellate Court. But where such exceptional grounds exist, the Court will exercise its discretion under Section 439 and reverse the conviction and sentence. I am of opinion that the present case does fall within the principle of the ruling in Queen Empress V/s. Shekh Saheb Badrudin, which has become the leading authority upon the subject. What is the evidence to show that the petitioner asked Balkrishna to falsely personate him ? THE Magistrate's judgment contains no reference to any evidence relevant to that point. All he holds is that the petitioner asked Balkrishna to go and do his work-which is different from asking Balkrishna to falsely personate the petitioner. But the learned Government Pleader argues that though the Magistrate's judgment is defective in respect of the finding necessary for the purpose of the offence of which the petitioner has been convicted, there is evidence in the case to support the conviction. And he refers us to Ex. 3, which is a statement of the petitioner recorded by the Assistant Collector. THEre the petitioner no doubt at first said that he had asked Balkrishna to represent that he was the Kulkarni Umakant which is the petitioner's name. But that admission was retracted by the petitioner in the very same statement on the ground that he had misunderstood the question put to him by the Assistant Collector. And the Magistrate does not in his judgment rely upon the said admission in finding the petitioner guilty. I infer from that that the Magistrate has not attached importance to that particular part of Ex. 3. At any rate when the Magistrate (who tried the petitioner) does not in so many words rely upon the admission I should hesitate to act upon it seeing that that admission (Ex. 3) was recorded at a time when he must have got frightened and seeing also that after all there was no dishonest intention on the part of the accused. He sent Balkrishna to do his work merely because he had to attend to his mother's anniversary ceremonies. I accordingly hold that the conviction and sentence must be quashed and direct that the fine, if paid, must be refunded. Beaman, J. 1. Notwithstanding the rule mentioned by the learned Government Pleader to which I believe a long standing cursus curiae has given sanction, the rule, I mean, that in the exercise of its powers of criminal revision this Court will not ordinarily interfere, upon questions of fact, as it is usually put, meaning rather upon a mere appreciation of the evidence, I think that this is an exceptional case, which, while I may allow the soundness of the rule, with proper qualifications, does call for our interference. And as in some observations which passed between me and the learned Government Pleader I think I may have been to some extent at least misunderstood, I should like to add a word or two of explanation. THEre is nothing in the Statute law which precludes the High Court from interfering in the exercise of its revisional powers with convictions and sentences whether the ground of that interference be what is commonly called a question of fact, or whether it be a question of law. THE cursus curiae, drawing a distinction between grounds of the former and grounds of the latter sort rests rather upon a principle of convenience than of law. It is quite true to say that a High Court will not ordinarily exercise its revisional authority upon questions of appreciating evidence-and it is right that it should not do so. For that would be admitting an appeal in every case. But the distinction has this disadvantage that it has been carried the length of almost implying that the Court has no power to interfere except upon a question of law. That is, I need hardly say, an unsustainable proposition. And it carries along with it an implied proposition that the Court always will interfere in revision where there is a question of law, which is, I think, scarcely less mischievous. As I understand the law the true rule to which the cursus curiae gives but a partial expression, is that in the exercise of its revisional powers this Court will not interfere unless it is satisfied that it is necessary to do so to prevent an other wise irreparable injustice. Turning to the case before us, I think it exceptional, because, for one reason, the substantive offence with the abetment of which the present applicant has been charged is one of the few offences in the Indian Penal Code, in which a dishonest intention is not expressly made an essential ingredient. Literally and technically therefore we have not been able to take full account of the probability or otherwise of the applicant having been actuated by any dishonest intention. Looking only to the evidence I think that the learned Government Pleader had full justification for saying that the Magistrate had found the offence proved and that there was evidence to support that finding. So that, apparently, the case was well within the ordinary rule. But I am equally clear that there is nothing at all to show that Avhether the accused did say, as the prosecution alleges, Go and personate me, or whether as he now pleads he said, go and do my work for me, he had any dishonest intention. I do not think that at the worst it is made out that there was any moral culpability, anything for which the accused really deserved to be criminally prosecuted and punished. As I understand that the consequence of allowing the conviction and sentence to stand would be the permanent disqualification of the applicant, I think that would be a punishment out of all proportion to what at most was in my opinion a departmental fault. I would therefore set aside the conviction and sentence.