EMPEROR Vs. HARAK CHAND MARWARI

JUDGEMENT

(1.) CRIMINAL Reference 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 266 of the Indian Penal Code before a Magistrate in respect of two measures of length which he was using in the shop. The one measure was 35 inches, and the other measure was 35 1/2 inches long. The Magistrate who tried the case came to the conclusion that in the village where these persons live and sell their wares the prevailing standard of measurement was a yard of 35 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 but maintained the sentence. In regard to the charge on which the accused has been acquitted, the learned Sessions Judge has sent the record 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 loth to take up in revision oases of this 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 doubts 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 1889. Where 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 but one in which if it is necessary the Local Government may appeal if it deems fit. Let the record be returned.