BASIRULLA Vs. ASADULLA

JUDGEMENT

(1.) In this case the accused were convicted by the trying Magistrate under Secs.426 and 323, I.P.C. and sentenced to pay fines. On appeal the learned District Magistrate held that the mischief was committed with reference to a hut which had not belonged to the complainant but to his father from whom he was living separately. In this view he acquitted the accused. About the end of his judgment the learned District Magistrate commented upon the evidence of two of the witnesses for the prosecution which he thought was not true. He concludes his judgment with these words: As already stated the case fails because the person interested, complainant's father, has taken no interest in the matter.

(2.) The real ground upon which the learned District Magistrate acquitted the accused was that the complainant was not entitled in law to make the complaint. Against the order of acquittal this rule has been obtained on the ground that the view of law taken by the Magistrate is erroneous. There can be no question that a complaint may be made by any person who knows about the commission of an offence and not necessarily by the injured party. The definition of "complaint" in Section 4, Criminal P.C. supports the view accepted on several occasions. It has not been seriously contended on behalf of the opposite party before us that the view which the Magistrate has taken that the complainant in this case is not entitled to maintain the complaint is correct.

(3.) The next question is whether we should interfere in this matter when the accused has been acquitted by the lower appellate Court. There is no doubt that the principle which we generally keep in view is that in private prosecutions where the Crown does not think it proper to move against the order of acquittal we should not ordinarily interfere and we do so only when we are satisfied that there has been an error of law committed by the acquitting Court or where there has been a gross miscarriage of justice or in public interest. The present case, it seems, is one of these cases. The view of the law taken by the appellate Court is wrong and the case has not been disposed of by that Court upon an examination of the entire evidence in the record. The complainant had several injuries on his person which the medical evidence shows were severe. The defence admitted the occurrence but they accounted for the injuries on the complainant by saying that they were caused by a tin shed falling upon him. This theory, the medical evidence, does not support. Other witnesses were examined for the prosecution some of whom seem to be disinterested and were relied upon by the trying Magistrate. We do not think that there has been a proper enquiry into the facts of this case and the order of acquittal should accordingly be set aside.