1. This is an application in revision which is made by Mr. Kane, pleader, on behalf of the Bar Association, Pandharpur. It appears that the accused, who is pleader of Pandharpur, was convicted by the Additional District Magistrate, Sholapur Under Section 47, Bombay Salt Act, 1890, with Section 117, I.P.C., and sentenced to suffer rigorous imprisonment for two years and a fine of Rs. 300 and to suffer rigorous imprisonment for six months Under Section 47, Bombay Salt Act, 1890. The accused has not seen fit to appeal and Section 439(5), Criminal P.C., provides that where an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed, so that if this application was made by the accused himself it would not lie.
2. No doubt this Court has jurisdiction to entertain applications in revision, where no right of appeal has been exercised, where the application is made by a third party, but entertaining such an application seems to me some what in breach of the spirit of Section 439(5), and third parties ought not to apply in revision unless there is a very strong case. I think the Bar Association in this case have applied because of a decision of the Oudh Chief Court in Oudh Bar Association, Lucknow, in re: Emperor v. Mohan Lal Saksena A.I.R. 1930 Oudh. 497. That of course, is not an authorized report, nor is the decision binding upon us. The effect of the decision seems to be that an accused cannot be convicted Under Section 117, I.P.C., if he is charged Under Section 9, Salt Act, 1882, because that section prescribes a punishment for abetment. In point of fact this case does not come Under Section 9, Salt Act; it comes Under Section 47, Bombay Salt Act. But, even apart from that difficulty, it seems to me, with respect to the learned Judges who decided that Oudh case, that they have failed to observe that the offence Under Section 117, I.P.C. is not the offence of abetment simply, but abetment by the public generally or by any number or class of persons exceeding ten, and the abetment referred to in Section 9, Salt Act of 1882, is simply abetment within the meaning of the Indian Penal Code, which may be abetment by a single person. It seems to me that the offence Under Section 117, I.P.C. is a different offence to the offence Under Section 9, Salt Act.
3. It was perfectly legitimate for the legislature to take the view that abetment of an offence by the public generally or by a large number of persons is a more serious matter then the abetment of an offence by a particular individual, and to empower the imposition of a heavier sentence in respect of the former offence.
4. In my opinion, there is no ground here for interfering with the decision of the Magistrate. I think it was legal. Therefore, the application must be refused.
5. I agree. Mr. Abhyankar's argument is that since Section 9, Salt Act, punishes an abetment of an offence under that Act, consequently by Section 5, I.P.C., abetment of an offence under the Salt Act can only be punished under that section and not Under Section 117, I.P.C., and Section 47, Bombay Salt Act, these being the sections under which the conviction in question was bad. I think that the provisions of the Salt Act really have no application to the facts of the present case. The conviction is Under Section 47 of the Local Act and as pointed out by the learned Chief Justice in the judgment he has just delivered, Section 117 is not the ordinary offence of abetment, but makes punishable a different kind of offence altogether, that of inciting the public generally or any number or class of persons exceeding ten, to commit an offencs. As far as I can sea I think the learned Magistrate's conclusion is correct and that there is no reason for interfering.