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Mangli Prasad Vs. Budh Sen and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported inAIR1949All264; 1949CriLJ460
AppellantMangli Prasad
RespondentBudh Sen and ors.
Excerpt:
- - mangli prasad does not complain that any part of his evidence was not recorded, the learned magistrate on a consideration of that evidence came to the conclusion that the case was doubtful and acquitted the opposite-parties. he has, therefore, recommended that the acquittal should be set aside as there has been a great miscarriage of justice in this case and a retrial be ordered. while this high court has laid down that an order of acquittal cannot be changed into an order of conviction in revision, it is to be noted that in so far as the accused person is concerned it is difficult to see how he is better off if at the instance of a private prosecutor his order of acquittal i% quashed, a re-trial is ordered, and be is subsequently convicted......parties, be set aside and that a re.trial be ordered. the prosecution ease was that the applicant, mangli prasad, was the own cousin of budb sen, opposite party. bramha. nand opposite-party is the son of budh sen and babu ram opposite party is their 'relation, mangli frasad was childless and the opposite parties naturally expected that they would succeed him. recently, however, mangli prasad got his tenancy partitioned and got the name of his bister's son entered in his khata with the consent of the zamindars, this annoyed the opposite, parties who felt that their right of sue-cession was jeopardised. consequently they as-united mangli frasad on 27th december 1946, and caused him a number of injuries.2. evidence was produced before the learo. ed magistrate by be to the parties. mangli.....
Judgment:

Wanchoo, J.

1. This is a reference by the Sessions Judge of Farrukhabad recommending that the acquittal of Budh Sen, Brahmanand and Babu Ram, opposite parties, be set aside and that a re.trial be ordered. The prosecution ease was that the applicant, Mangli Prasad, was the own cousin of Budb Sen, opposite party. Bramha. nand opposite-party is the son of Budh Sen and Babu Ram opposite party is their 'relation, Mangli Frasad was childless and the opposite parties naturally expected that they would succeed him. Recently, however, Mangli Prasad got his tenancy partitioned and got the name of his Bister's son entered in his khata with the Consent of the zamindars, This annoyed the opposite, parties who felt that their right of sue-cession was jeopardised. Consequently they as-united Mangli Frasad on 27th December 1946, and caused him a number of injuries.

2. Evidence was produced before the learo. ed Magistrate by be to the parties. Mangli Prasad does not complain that any part of his evidence was not recorded, The learned Magistrate on a consideration of that evidence came to the conclusion that the case was doubtful and acquitted the opposite-parties. Thereupon Mangli Prasad went in revision to the learned Sessions Judge who has gone into the facts. He has come to the conclusion that the learned Magistrate arrived at wrong findings. He has, therefore, recommended that the acquittal should be set aside as there has been a great miscarriage of justice in this case and a retrial be ordered. It may be mentioned that Mangli Prasad had eight simple injuries on his body, none of which appeared to be of a very serious nature. The only question that arises for determination in this reference is whether this Court should interfere in oases of this kind. A number of autherities have been cited before me from be to sides in this connection.

3. The first of these is the case of Nand Ram v. Kazan and another, 19 A. L. J.'r, 589 : (A.I.R. (8) 1921 ALL 266: 22 Or. L. J, 337). That was a case where Nand Earn was grjevously assaulted and as a result of that assault was unconscious for four days. It was held therein that an order of acquittal should (inly be revised in cases where the alleged offence is of a serious character, and a Judge comes to the opinion that there has been a miscarriage of justice, where for instance the lower Court has misquoted the evidence, or where, having evidence before it which prima facie is reasonable and credible the Judge gives no grounds whatever for rejecting it and does not satisfactorily review it. The next case is that of Dhum Bahadur v. Ilori Lai : AIR1934All714 , This was a case under Section 408, Penal Code, against a karinda. A retrial was ordered and it was said that the power had to be exercised sparingly and with caution. The reason why the power was exercised was that the judgment of the trial Magistrate was'full of surmises and special pleadings. It was said that 'the trial Courts are expected to record findings with defmiteness and precision and not to indulge in airy generalities.' These two cases show that before this Court will interfere with a finding of acquittal, it has to be satis-fied that the case is of a serious character and there has been a serious miscarriage of justice.

4. On the other side, reliance has been placed on the case of Pahalwan Singh v. Sahib Singh A.I.R. (8) 1921 ALL 76 : (22 Cr. L. J. 537). In this case, it was said that:

There can be no doubt as to the f Act. that a High Court has power under Section 439, Criminal P. C, to revise an order of acquittal, though not to convert a finding of acquittal into one of conviction ,.. But on many occasions It ha eince been laid down In this and other Courts that (his power of interference with acquittal in revision is a power that should be used very sparingly....In India (presumably owing to special reasons) the immunity from re-trial and conviction bas been somewhat modified and it is open to the Local Government to present an appeal against an acquittal.. . But it has always been held Hnd it always should be held that this power to appeal is a power vested in the Local Government and that do right to appeal is possessed by a private person. While this High Court has laid down that an order of acquittal cannot be changed into an order of conviction in revision, it is to be noted that in so far as the accused person is concerned it is difficult to see how he is better off if at the instance of a private prosecutor his order of acquittal i% quashed, a re-trial Is ordered, and be is subsequently convicted. When this procedure is adopted, and a man who bas been legally acquitted is re-tried by an order in revision and then convicted, the private individual has gained by another methed the privilege to which he is not entitled under the law. He has appealed against the acquittal and appealed against it successfully.

If I may respectfully say so, I agree with these observations of Stuart J. in the above case. It is only in a very rare case of a Berious kind, where there has been a serious miscarriage of justice, that this Court would interfere with an order of acquittal in a case in which all the evidence has been led and has been considered by the trial Court. The mere fact that the reasons given by the trial Court for doubting the evidence of certain witnesses do not commend themselves to a superior Court is no ground for interfering with an order of acquittal. The pre. sent ease is not of a serious nature and it does not appear to me that there has been a serious miscarriage of justice. All the evidence that the parties wanted to produce has been led, The trial Court has considered that evidence and has given certain reasons for doubting that evidence, It may bothat these reasons are not very sound and do not commend themselves to the superior Court. But that, in my opinion, is not the test which should be applied when interfering with orders of acquittal. Even in the two cases cited on behalf of the applicant, Mangli Prasad, the judgments of the trial Courts were vitiated by far graver defects than is the case here. Under these circumstances, I am of opinion that there is no reason for interference with the order of acquittal in this case. The reference is hereby rejected..


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