RATAN LAL Vs. REX

JUDGEMENT

(1.) The five applicants were tried and convicted by a learned Magistrate of Naini Tal for an offence under Sub-rule (4) of Rule 81, Defence of India Rules, read with Clause 3, U.P. Food Grains Price Control Order, 1945. Four of them namely Ratan Lal, Khunni Lal, Saligram and Ramrichhpal, who are partners of the firm of Kishan Lal Ratan Lal of Haldwani, were sentenced to three months rigorous imprisonment and to a fine of Rs. 1000 each. Raghunath Prasad, who is a Munim of that firm, was sentenced only to a rigorous imprisonment of 3 months. There was an appeal and it appears from the judgment of the learned Sessions Judge that the case was argued at great length on merits as well as on law points. The arguments took one full day before the learned Sessions Judge. The learned Sessions Judge, however, did not enter into the merits of the case. He only dealt with one law point, namely, whether in view of the provisions of Rule 130 (4), Defence of India Rules, the Magistrate was right in trying the case summarily. That Rule requires an application on behalf of the prosecution before the summary trial of the case. The learned Sessions Judge held that as an application in writing was necessary, the trial was vitiated. He, therefore, allowed the appeal and set aside the conviction and sentence recorded against the applicants by the learned Magistrate, but directed a retrial. It is against this order that the petitioners have come in revision. They contend that the learned Sessions Judge erred in directing a retrial in the circumstances of the present case. It is argued that a retrial should be directed by an appellate Court under Section 423, Criminal P.C., very sparingly and in this connection reliance is placed upon Emperor V/s. Mohan Lal A.I.R. (2) 1915 All. 185. It was held in that case that the power to order retrial should be sparingly exercised and a retrial should not be ordered unless there are grave reasons few doing so.

(2.) In the present case the position is that on merits the prosecution had utterly failed to substantiate its case. In appeal before the learned Sessions Judge the applicants contended firstly, that the case was not proved on facts, and secondly, that there were legal defects in the trial. I am of opinion that if in the opinion of the Court in appeal the prosecution case is not established against an appellant and there are also formal defects in the proceedings of the trial Court, no retrial should be ordered, because that would give an opportunity to the prosecution to fill in the gaps. If, however, the case appears to be proved on facts and there are formal defects only in the proceedings of the trial Court, then it is open to the appellate Court to direct a retrial. One can see the great harassment to which a party is put by double trial. It is the duty of the prosecution to adduce all necessary evidence in the first instance. A party should not be permitted to adduce evidence piecemeal.

(3.) The charge against the applicants was that they were charging price from one Mahendra Singh contractor in excess of the controlled rates and in proof of this three Bijaks, Exs. P.-6, P-8 and P-10 and slips which are alleged to have accompanied them, namely, Exs. P-7, P-9 and P-11, were produced. The defence was that the slips-Exs. p-7. p-9 and p-11-were not written either by the applicants or by their servants and were not in fact despatched by them along with the Bijaks. They denied that the slips accompanied the Bijaks. The Bijaks contain the bill at the controlled rates and the slips with the extra price alleged to have been demanded by the accused.