1. This is a reference under Section 438 of the Criminal Procedure Code made by the learned District Magistrate of Gulbarga in the following circumstances:
2. On 12-8-1956 one Abdul Wahed on behalf of one Rasul Bi made a written complaint to theYadgir police charging the respondents before me with having illegally broken into her house on 5-8-1956 by breaking the locks and with having removed certain properties kept therein. It was also complained that the accused continued in illegal occupation of the house. This information was registered by the police under Sections 457 and 380 of the Indian Penal Code.
After investigation, however, they filed a charge sheet before the Munsiff-Magistrate of Yadgir only in respect on an offence under Section 457 I.P.C. This was on 21-9-1956. Thereafter the case underwent a series of adjournments as one or other of the parties was absent and one of the accused frequently reported illness. On 19-3-1957 the accused filed a written statement setting out various reasons why the prosecution was misconceived and praying that the case may be dismissed and the accused discharged.
This statement discloses that in respect of the house there was pending civil litigation between the parties who are closely related to each other besides some other proceedings under Section 145 of the Criminal Procedure Code. Though this statement was filed, it appears from the order sheet that only the 1st accused was present and the 2nd accused had sent a telegram to the court stating that he had missed his train and praying for an adjournment.
The adjournment was granted and after two such adjournments the Magistrate heard full arguments on 23-3-1957 -- Ultimately on 3-4-1957 he framed a charge against both the accused under Section 456 of the Indian Penal Code. Both of them pleaded not guilty to the charge and the Magistrate directed issue of summonses to P. Ws. 2 to 6.
3. Sometime thereafter there appears to have been a change of Magistrate at Yadgir. The new Magistrate ultimately came to pass an order on 29-7-1957, which is the subject-matter of this reference. In that order the learned Magistrate observes that his predecessor does not appear to have heard the parties regarding their application on 19-3-1957 to which I have already made a reference.
He further observes:
'by the perusal of the whole file I could not find how it was held or presumed that the offence of house-breaking was committed in the night except that there is a letter from the police'.
After referring to the civil litigation between the parties the learned Magistrate states that the parties should have been left to have their rights settled in a civil court, he concludes by stating:
'hence the case is dismissed under Section 253 Cr. P. C. and the accused are discharged.'
4. Thereupon the State filed a revision petition before the learned District Magistrate of Gulbarga. The learned District Magistrate observes that the Munsiff-Magistrate at Yadgir who passed the order dated 29-7-1957 has acted in total disregard of the provisions of the Code of Criminal Procedure. For one thing it was clear that the case was a warrant case and had been instituted on a police report.
Hence the Magistrate should have followed the procedure prescribed by Section 251-A of the Code and was wrong in having discharged the accused under Section 253. Secondly his predecessor having framed a charge and also recorded the pica of the accused in answer to that charge the case had proceeded beyond the stage at which Sub-section (2) of Section 251-A could operate.
It was incumbent, therefore, upon the Magistrate to have proceeded to record evidence and conclude the case either by convicting or acquitting the accused on the basis of the evidence recorded. What is more, by his order dated 29-7-1957 the learned Magistrate has virtually reviewed the order of his predecessor framing the charge against the accused. This he had no right to do.
5. There can be no doubt whatever that the opinion expressed by the learned District Magistrate is correct and that the learned Munsiff-Magistrate of Yadgir has acted in total disregard of the mandatory provisions of the Code of Criminal Procedure.
6. The learned District Magistrate found it difficult to make a direction under Section 436 of the Code because he felt that although the learned Munsiff-Magistrate has used the word 'discharged' the effect of the order would be an acquittal for the reason a charge had already been framed and the order of discharge could not be read as one made under Sub-section (2) of Section 251-A. He has, therefore, reported the case to this Court for appropriate orders.
7. As already stated, I have no doubts that the procedure adopted by the learned Munsiff-Magistrate of Yadgir is manifestly illegal, which in the normal course is open to correction by this Court. The circumstance, however, that the order is in effect an order of acquittal still continues to be the principal difficulty in this case.
On the strength of this the learned counsel for the accused has urged that although this is in form a reference, the result, sought to be achieved is a setting aside of an order of acquittal in revision at the instance of the State, which has a right of appeal under Section 417 of the Code and that, therefore, this Court is debarred from entertaining such a revision by reason of Sub-section (5) of Section 439 of the Code. He contends that the reference itself is incompetent and this court having regard to the clear provision of Section 439 (5) should reject the reference.
8. The argument may be briefly summarised as follows: In cases instituted upon police report the State is undoubtedly the party which prosecutes the accused. If such a case results in an acquittal, the State is entitled to file an appeal against the order of acquittal under the provisions of Section 417 of the Code.
When, therefore, an appeal lies at the instance of the State but no such appeal is brought, no proceeding by way of revision shall be entertained at the instance of the State, if the State should have itself directly filed an application in revision before this Court. This bar cannot be evaded by the State filing a revision petition before a District Magistrate or a Court of Session and getting either of them to make a reference to the High Court under Section 438.
When the District Magistrate or the Court of Session is moved in revision by the State and in such revision either of them makes a reference to the High Court under Section 438, the reference is really the continuation of the proceedings in revision and such revision must be regarded as having boon made at the instance of the State itself. Once this result is arrived at, the learned counsel contends that the bar under Sub-section (5) of Section 439 will at once operate and this Court is precluded from entertaining any such revision.
9. The contention that the State is a party in cases instituted on police report is not open to doubt. In cognizable cases it is perfectly clear that the state itself takes the exclusive responsibility of bringing the offender to justice. No authority is necessary for this proposition. Reference may, however, be made to the observations of Mukherji J., in the Full Bench case of the Allahabad High Court, Shaila Bala Devi v. Emperor, reported in : AIR1933All678 .
I shall refer to these observations in some detail at a later stage of this order. The learned counsel for the accused has placed great reliance on the judgment of Narasimham C.J. in State v. Lachman Murty, reported in : AIR1958Ori204 . In that case after a review of all authorities the learned Chief Justice held that where in police cases ending in acquittal the State omits to file an appeal under Section 417 of the Code it cannot move the High Court through a Sessions Judge or a District Magistrate to reverse the order of acquittal in the exercise of its revisional jurisdiction under Section 439.
It is further clearly held that the State being a party for purposes of Sub-section (5) of Section 439, that sub-section would operate as a bar against High Court's interference in revision. The learned Chief Justice agrees with the learned Judges of the Patna High Court, who have expressed a similar opinion in State v. Alakh Narain Singh, reported in : AIR1954Pat161 . As the several authorities on this question have been fully discussed in these two cases, it is unnecessary for me to refer to any of them at length.
10. That the State is a party in the sense described in the above cases and that Sub-section (5) of Section 439 will operate as a bar against the State filing a revision petition may be accepted as correct. The only aspect of the matter which the cases relied upon by the learned counsel for the accused have not considered or discussed is: 'against whom does the bar operate?' I think it is essential in the case of such statutory bars to examine the question whether the bar merely operates to render a party incompetent to come to court with a certain type of proceeding or the bar operates to deprive the court itself of its jurisdiction.
There is no doubt that the revisional jurisdiction of the High Court is very wide and that it may be exercised whenever the facts calling for its exercise are brought to the notice of the court and it matters little how and by whom those facts are brought to the notice of the High Court. If this aspect of the matter is borne in mind, one can well ask the question whether this undoubted right of the High Court is lost by reason only of the fact that a party who is precluded from filing a revision brings the facts to the notice of the High Court.
The Orissa case mentioned above while referring to cases where High Courts have interfered in revision has distinguished such cases by stating that in all those cases the revision application had been filed not by the party aggrieved but by a third party. It is a little difficult for me to understand the principle of this distinction.
If the High Court could act in revision at the instance of a party. who is not directly interested, it is little difficult to accept the proposition that the moment the party directly interested brings the matter to the notice of the High Court, the High Court loses all power, of exercising its revisional jurisdiction.
11. It is also necessary to bear in mind that the revisional jurisdiction of the High Court is in its real purpose not a mere power but also a duty. I in this connection the following observations ofMukherji J., in : AIR1933All678 may be usefully extracted:
'The Crown is the protector of its subjects and therefore would see that no innocent person, being its subject, shall suffer and that no subject shall suffer a larger sentence than is just and proper. This duty and privilege of the Crown is entrusted to the High Court and this is the reason for conferring on it the large powers, both under the Government of India Act, Section 107 and Section 439, Criminal P. C. In this particular case before us, the Crown Counsel has admitted that the conviction is illegal. It would then be the duty of the Court to interfere, it being immaterial -- it being absolutely immaterial for the purpose who gives the information on which the Court is to act.'
This duty cannot, in my opinion, be effectively discharged unless the High Court sees to it that the subordinate criminal courts conduct their proceedings strictly in accordance with the Code of Criminal Procedure. The provisions of the Code are intended to achieve the principal purpose of the administration of criminal justice, viz., that all infractions of the criminal law are duly and properly investigated and inquired into and offences are duly punished according to law and innocent persons are not punished.
It will, therefore, be startling proposition that the High Court should be disabled from discharging this very necessary duty simply because a party who could and should have appealed makes the mistake of filing a revision. The meaning of this will become clear if we take the example not of the States filing revision but of an accused, who should have appealed, against conviction, making the mistake of filing a revision petition.
Sub-s. (5) of Section 439 applies equally to an accused who is a party and as such a revision at his instance in appealable cases cannot be entertained. Could it be said in such circumstances that the High Court should refrain from acquitting him even if the circumstances of the case justify such an acquittal? Such interpretation, as Mukherji J., points our, would imply that the legislature was revengeful. No such interpretation can be accepted as logical. The object of the rule is only to induce the party who could appeal to avail himself of the larger remedy.
12. In my opinion the bar under Sub-section (5) of Section 439 can operate only against a party and cannot operate to deprive the High Court of its undoubted jurisdiction. I cannot, therefore, accept the contention that this reference is incompetent and this court cannot accept it and make appropriate directions to ensure obedience to the law of procedure by the subordinate courts.
13. The only remaining question is whether the circumstances of this case are such as to justify the setting aside of the acquittal and directing further inquiry. On this point I cannot do better than state the principle as formulated by the Supreme Court of India in Stephens v. Nosibolla : 1951CriLJ510 :
'The revisional jurisdiction conferred on the High Court under Section 439 is not to be lightly exercised ..... It could be exercisedonly in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality or the prevention of a gross miscarriage of justice.'
The case before the Supreme Court was one of revision against acquittal by a private party before the present amendment of Section 417. The principles stated, however, are even now applicable in cases of revision against acquittals.
14. Applying these principles, there can be no doubt that the learned Munsiff-Magistrate of Yadgir in this case has committed a manifest illegality in ignoring the express provision of Section 251-A of the Code of Criminal Procedure. I have, therefore, no option but to interfere. It may also be added that any appeal by the State now would be considerably out of time and no purpose will be served by my refraining from interfering in revision and leaving it to the State to prefer an appeal on its own.
15. The order of the learned Munsiff-Magistrate of Yadgir dated 29-7-1957 is, therefore, set aside and he is directed to readmit the case to his file and proceed to deal with it in accordance with law.
16. Order accordingly.