BAKHORI GOPE Vs. HAFIZ ABDUL HALIM

JUDGEMENT

(1.) This is an application by the informant at whose instance nineteen accused persons were prosecuted on charges of rioting, grievous hurt and attempt to murder and the proceedings resulted in the acquittal of all the accused by the unanimous verdict of a jury in the Court of the Additional Sessions Judge of Patna on 9 June 1939. Of the persons said to have taken part in this alleged riot one Abdul Shah died on 21 August 1938 and another Rafiquddin has died since the disposal of the Sessions case. There are therefore seventeen persons whose acquittal the petitioner seeks to have revised. The application was presented more than sixty days after the acquittal of the accused. The occurrence in question took place on 16 August 1938; the accused persons were committed to the Court of Session on 22 September, 1938 and it was not till 29 January 1939 that a date was fixed for the trial and precept issued for summoning the jurors. The trial actually commenced on 5 May 1939 and terminated as above stated on 9 June 1939.

(2.) In view of these protracted proceedings it would be unfortunate if it should prove necessary again to re-open the matter which has been decided. This Court always acts with great reluctance in allowing a petition for revision against an order of acquittal and only when it is shown that such interference is essential to avoid or remedy a clear failure of justice. There is a regular procedure for challenging an acquittal by a criminal Court through the means of an appeal, by the Local Government and the Local Government has not thought fit to prefer any appeal in the present instance. I shall however deal with the points raised, particularly the first objection pressed before me as this relates to a defect in the manner of choosing the jury in consequence of which it is said the whole trial was without jurisdiction as having been held coram non judice.

(3.) It is said that the precept for summoning jurors which was issued on 29th January 1939 by an Assistant Sessions Judge to whom the Sessions Judge had transferred the case was ultra vires. For this contention reference is made to the opening words of Section 826, Criminal P.C., under which the Sessions Judge is ordinarily to send the usual letter to the District Magistrate. It it said that the Assistant Sessions Judge has no authority to exercise the powers given by the section to the Sessions Judge. No reported case could be produced in support of this contention, but there is a reference in the textbooks to an unreported decision--Ratanlal 148--for the proposition that the duty imposed on the Sessions Judge by Section 326 cannot be discharged by a subordinate Judge in temporary charge of the current routine duties of the office of the District and Sessions Judge.