1. This is a reference by the Sessions Judge of Kaira recommending that the conviction of accused Nos. 6 and 8 in a case tried by the Second Class Magistrate, Anand, under Sections 4 and 5 of the Prevention of Gambling Act, IV of 1887, being illegal may be set aside. In this case there were originally eleven accused persons. Out of them accused No. 3 was examined as an approver witness and accused Nos. 1, 2, 4, 5, 6, 8, 9, 10 and 11 were convicted. Accused Nos. 1, 2, 4, 5, 9, 10 and 11 appealed to the Honorary First Class Magistrate with appellate powers and were acquitted. Thereafter accused Nos. 6 and 8 made an application in revision to the Sessions Judge who! has made the present reference. The learned Public Prosecutor, Nadiad, opposed this application on the ground that as the applicants had not appealed, no proceedings by way of revision could be entertained at their instance under Section 439(5) of the Criminal Procedure Code. The learned Sessions Judge has thus stated his grounds for making the present reference :
The learned Public Prosecutor concedes that if this matter had come to my notice otherwise than through the present application, I could have referred it to the Honourable High Court and recommended the setting aside of the learned trial Magistrate's order. Indeed if we construe Section 439(5) of the Code of Criminal Procedure too literally, the position would be that I could dimiss the present application and then having come to know of this matter could address a letter to the Honourable High Court under Section 438 of the Code of Criminal Procedure and recommend the quashing of the learned trial Magistrate's order. There would be hardly any propriety in that sort of procedure, and that being so, in the interests of justice, I submit these papers to the Honourable High Court.
2. On a perusal of the appellate Court's judgment it seems to us beyond doubt that the conviction of the accused by the Second Class Magistrate was legally wrong. The question that has been put by the Sessions Judge is, however, whether it is possible to entertain in revision any proceedings at the instance of such accused persons as have not appealed. On this point it seems to us that the language of Sub-section (5) of Section 439 is abundantly clear. It does not seem to us that those words are capable of more than one interpretation, viz., that where the party in question has not appealed, no application made by him in revision can be entertained by the Court. We must, therefore, hold that the present application made by accused Nos. 6 and 8 ought to have been rejected.
3. Apart from the specific ground of the present reference, however, the learned advocate who has appeared for accused Nos. 6 and 8 has raised the question whether it is not open to us, in view of the definite finding of the learned Sessions Judge that the conviction of these accused persons is legally wrong, to give any relief to them. This case is peculiar in this respect that the majority of the accused convicted by the trial Court preferred appeals which were decided in their favour and that for some reason or other only these two accused persons did not appeal. If there had been no such appeal, there would have been no question of examining whether any relief apart from the provisions of the Criminal Procedure Code could be given to them. Even if the learned Sessions Judge had moved this Court under Section 438 of the Criminal Procedure Code, it is very doubtful whether such reference would have been entertained. The judgment, however, of the appellate Court clearly shows that the warrant issued under Section 6 of the Prevention of Gambling Act was issued by an officer not empowered to issue it, that therefore the presumption arising under Section 7 of the Act did not arise, that the approver's evidence was unreliable and that thus there was no sufficient evidence against the accused. This is thus an obvious case of illegal or wrong conviction.
4. The powers of this Court of superintendence under Section 107 of the Government of India Act were examined in Emperor v. Balkrishna Phansalkar : (1932)34BOMLR1523 and it was held (p. 1545) :-
Under Section 107 the High Court has superintendence over all Courts for the time being subject to its appellate jurisdiction. It is not disputed that rights of superintendence include not only superintendence on administrative points, but superintendence on the judicial side too, and that under its power of superintendence the High Court can correct any error in a judgment of a Court subject to its appellate jurisdiction.
5. It is obvious that the powers of superintendence under this section of the Government of India Act are not ordinarily meant to be exercised where no power of revision or interference exists under the Code of Criminal Procedure and that such power ought to be exercised only in rare cases where an obvious miscarriage of justice cannot be otherwise prevented. It is clear that such powers are not intended to be invoked in order to get round any of the express provisions of the Criminal Procedure Code. It seems to us, however, that this being a case of wrong conviction on the face of it, it is desirable in this case to use the power of superintendence in judicial matters which vests in this Court under Section 107 of the Government of India Act. In the exercise of such power, therefore, we would set aside the conviction and sentence and direct that the fine, if paid, should be refunded.
6. The learned advocate for accused Nos. 6 and 8 also invited us to use our powers under Section 561A of the Criminal Procedure Code. He contended that the terms of this section were wide enough to enable us to correct the illegality and set aside the conviction. Our attention has been invited to In re Gurunath Narayan : AIR1924Bom485 the first part of the head-note of which runs thus :
The Court will not pass any orders under Section 561 A of the Criminal Procedure Code which would conflict with any of the provisions of the Code.
This part of the head-note appears to be based on the following remarks in the judgment (p. 720) :-
We do not think that we could make any order which would conflict with the provisions of ft 89, Criminal Procedure Code, in the exercise of our inherent powers to which a reference has been made.
This was a case in which an application was made to the Court under Section 89 of the Criminal Procedure Code beyond the period of limitation prescribed in that section and the application was dismissed on the ground of lapse of time. It was held by Shah Ag. C.J. that this order appeared to be correct, and it seems that in this case there was no obvious illegality that required to be corrected. It does not seem to us that the sentence quoted above was intended to lay down a general proposition that the provisions of Section 561 A of the Criminal Procedure Code could not be used for passing any orders conflicting with any other Emperor provisions of the Code. As, however, we have already decided to act under the general powers of superintendence granted by Section 107 of the Government of India Act, it is not necessary to decide this specific point. The order, there fore, will be as proposed above.