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Sripat NaraIn Singh and ors. Vs. Gahbar Rai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported inAIR1927All724a; 106Ind.Cas.680
AppellantSripat NaraIn Singh and ors.
RespondentGahbar Rai
Excerpt:
.....the order of the magistrate on precisely the same ground as that order is being impugned by the present application in revision. the consequence is that this application in revision is calling in question, on certain grounds, an order of a magistrate which order was previously considered on a reference from the sessions judge impugning that order on precisely the same grounds. in these circumstances it is clearly for the applicant in respect of the present application to show reason why the application is maintainable. pandey had right to appear in respect of the previous application, and consequently the decision on the previous application was bad because he was not called on to appear. the matter up before the high court was clearly new one and one that had never been up before. i..........the order of the magistrate on precisely the same ground as that order is being impugned by the present application in revision. the consequence is that this application in revision is calling in question, on certain grounds, an order of a magistrate which order was previously considered on a reference from the sessions judge impugning that order on precisely the same grounds. in these circumstances it is clearly for the applicant in respect of the present application to show reason why the application is maintainable.3. mr. goyle who, though not appearing in respect of the previous application, appears on behalf of the applicant to argue the present application, gives as the reason why, notwithstanding the matter having been already decided, this application in revision should and.....
Judgment:

Ashworth, J.

1. This is an application for revision of an order of a Magistrate of the First Class of Ghazipur, dated the 4th October 1926, convicting the applicant of an offence under Section 427, I.P.C., and sentencing him to pay fine of Rs. 10. The application in revision is based on the ground that the Deputy Magistrate, before convicting the applicant of the offence of mischief, was bound to find that the property in respect of which the mischief was alleged to be committed belonged to the complainant.

2. The matter has already been in revision before this Court on a reference from the Sessions Judge of Ghazipur. It appears that when the matter was up before me on the reference from the Sessions Judge a vakalatnama had been filed by Mr. Pandey. Mr. Pandey was not called upon by me to argue or appear in the case. It is possible that I was not even aware of any pleader having been engaged by the applicant. The reference by the Sessions Judge impugned the order of the Magistrate on precisely the same ground as that order is being impugned by the present application in revision. The consequence is that this application in revision is calling in question, on certain grounds, an order of a Magistrate which order was previously considered on a reference from the Sessions Judge impugning that order on precisely the same grounds. In these circumstances it is clearly for the applicant in respect of the present application to show reason why the application is maintainable.

3. Mr. Goyle who, though not appearing in respect of the previous application, appears on behalf of the applicant to argue the present application, gives as the reason why, notwithstanding the matter having been already decided, this application in revision should and must be entertained, the following. He says that Mr. Pandey had right to appear in respect of the previous application, and consequently the decision on the previous application was bad because he was not called on to appear. He further adds that he has a right in law to appear, at any rate, to support the present application. Now Section 440, Criminal P.C., is very explicit on the matter. That section runs:

No party has any tight to be heard either personally or by pleader before any Court when exercising its powers of revision.

4. It goes on to provide that the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader. Mr. Goyle maintains that this rule of law has been rescinded by a rule of practice in this Court. He refers to the case of Emperor v. Kohna Ram A.I.R. 1922 All. 502. That decision has no application to the present contention. It does not deal with the matter of an applicant being heard or not being heard by the mouth of his counsel. It is however cited by Mr. Goyle in order to show that, though a matter has been up in revision and decided, it may be brought up in revision again and the Court must decide it again. His contention, if allowed, would require this Court to hear an application in revision 100 times over. But the decision is no authority for such a contention. In that case the Sessions Judge had reported a conviction for the purposes of enhancing the sentence. A Judge of the High Court entertained the revision and threw it out. Subsequently the applicant put in another application in revision to the effect that the conviction of the Magistrate was wrong in law. It was held that the application called in a question a different matter to that dealt with by the Sessions Judge. The matter up before the High Court was clearly new one and one that had never been up before. The case has no bearing on the present case. I have only been able to obtain two decisions bearing on the present matter at all. One is Ram Nihore v. King Emperor [1911] 8 A.L.J. 287. In that decision Richards, J. said:

The Court is willing, as a rule, to get the help and assistance of legal gentlemen as amici curiae

and refers to Section 440. This remark is very far from being authority for holding that the clear provision of Section 440, Criminal P.C., has been overlaid by any established practice that counsel will be heard in revision cases. Each case must depend on the merits. Where a Sessions Judge has written a complete order setting forth his view and a reply has been submitted by the Magistrate concerned and the facts are clear beyond all doubt, it will not be my practice to call upon counsel to appear even if they filed an affidavit. Such a practice would be in direct conflict with the provisions of Section 440 which leaves me a discretion. It would also prevent revisional reference being decided in chambers. I see no reason for believing that in an ordinary case any particular counsel is likely to present the case better than the Sessions Judge. Another decision is Queen-Empress v. Hardhan [1892] 19 Cal. 380. In that case it was held that in matters of importance the Calcutta High Court has always heard counsel in criminal references. This is merely a statement of the practice of the Calcutta High Court, but I consider that it is a good practice, and one which may usefully be followed in this Court. Whether a matter is a matter of importance must be left to the discretion of the Judge hearing the reference.

5. This application is really in effect an application in review. It has been put in the form of another application in revision in order to avoid an objection that no review lies under the Criminal Procedure Code. I am not prepared to say that a Judge of this Court cannot review his judgment or decision. But it appears to me very clear that the application for review must come before the Judge who passed the decision which is to be reviewed. The application by counsel for review in such a case should ask that the application be put before the Judge who decided the matter. It is contrary to all propriety that he should put in an application for review as if it could be heard by another Judge. By styling this application 'an application in revision' this is what Mr. Goyle attempted to do.

6. This application was ordered by Judge of this Court to be put before me on certain grounds stated by him. The ground taken by him is that I could not have been aware that the present applicant was represented in the revision from the Sessions Judge. It is probable that I was not aware, and it is possible that if I had been aware, I would have heard Mr. Pandey. But the case once having been decided the mere fact that I did not exercise a discretion to hear counsel is no ground for a review. Before a review could be permitted, there would have to be shown some strong reason for altering the decision. No reason is shown in the present application. It merely reiterates the view which I hold was a wrong view of the Sessions Judge. The Magistrate had found that the applicant had pulled down a wall in the possession of another person for a long time without the slightest excuse for believing that the wall belonged to him (the applicant). When accused of mischief instead of saying that the wall was his or that he had believed it to be his, he said that the wall had fallen down, that he had nothing to do with its being pulled down, and then tried to put the complainant to proof that the wall was his. My brief order on the first application that possession is prima facie proof of title, and that the Magistrate had evidence on which he was justified in finding that the accused was out of possession, concludes the matter. In the view of the Sessions Judge a total stranger may come and knock down the wall of my house, and when accused of mischief demand that I should produce my title-deeds to prove that it was my wall.

7. The present application in revision is however, rejected by me on the grounds that the matter has been decided, and that there was no flaw in the previous decision. The contention of Mr. Goyle that there was a flaw because applicant's counsel was not heard is rejected. Also his contention that he must be heard in this case is rejected. The application is dismissed.


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