EMPEROR Vs. HARAK CHAND MARWAR

JUDGEMENT

(1.) CRIMINAL References Nos. 757, 758 and 759 are all similar and more or less connected with each other. One Harak Chand was prosecuted on two charges under, Section 285 of the Indian Penal Code before a Magistrate in respect to two measure of length which he was using in the shop. The one measure was 35. inches, and the other measure was 351 inches long The Magistrate who tried the case came to the conclusion that in the village where these parsons live and sell their wares the prevailing standard of measurement was 33 1/2 inches long. In respect to the one measure he, therefore, convicted Harak Chand and in respect to the other measure he acquitted him on the ground that fraudulent intent was not proved. He appealed against the conviction. The Sessions Judge altered the conviction from one section to another bat maintained the sentence. In regard to the charge on which the accused has been acquitted, the learned Sessions Judge has sent the re-cord to this Court with the recommendation that the order of acquittal should, be set aside and the accused be convicted under Section 266 of the Code. I have read the order of reference. There are two points in the case. In the first place the Government has a right of appeal against the order of acquittal. This Court has always been 10th to take up in revision cases of the description which have not been brought before it on appeal by the Local Government. In the present case it is really a public prosecution by a public official which has taken place. It is a matter in which Government is concerned and it is open to the District Magistrate to lay the matter before the Local Government with a view to an appeal being filed, if necessary, the matter being one of more or less public importance. In the second place, I have read the learned Sessions Judge s opinion as expressed in his order of reference and I have considerable doubt as to the correctness thereof. A necessary ingredient of an offence under Section 266 is fraudulent intent. One knows full well that the measures of weight and measures of length which are in use in this country in villages and towns differ considerably from the standard measures laid down by Government under Act II of 1829. Where everybody both purchaser and seller are well aware of the actual measure being used, there can be no question of fraudulent intent. It is only when the seller purports to sell according to a certain standard and sells below that Standard, that he can be said to be guilty of fraud. The case, in my opinion, is one which this Court ought not to take up in revision bat one in which, if it is necessary, the Local Government may appeal if it deems fit. Let the record be returned.