1. This is an application made by one, Mr. R.N. Basu, as Secretary of the District Bar Association of Allahabad, for the revision of a.n order of a Magistrate convicting B. Parshottam Das Tandon of an offence under Section 17(2), Criminal Law Amendment Act, and sentencing him to six months' R.I. That term of imprisonment has, I understand, already been served and the application is made on legal and technical grounds. A preliminary objection of some difficulty has been raised to the hearing of the application on the ground that no application was first made to the Sessions Judge. In the case of Sharif Ahmad v. Qabul Singh AIR 1921 All 30, it has been laid down by a Bench of this Court as a rule of practice that an application to the lower Court should be considered an essential step in the procedure, and that should be so, whether the District Magistrate or the Sessions Judge has power to grant the relief or not:
In future therefore failure on the part of the applicant to submit his application to the lower Court will operate as a bar to the application being entertained by the High Court.
2. If this rule of practice had been followed the present application would have been rejected on the ground that it had 2. not been presented to the Sessions judge. The rule of practice has been followed in numerous cases, but it has been pointed out that it has not been invariably followed. In the case of Narain Prasad v. Emperor AIR 1923 All 85, Sir Lewis Stuart pointed out that the High Court had jurisdiction to call for and examine the record of proceedings in a Magistrate's Court however the matter is brought to its notice. This decision is one year later than that of the Bench which lays down the practice of the Court, but there is nothing in it to show that the decision of the Bench was brought to the notice of the learned judge who so emphasised the powers of intervention by the High Court. In the much more recent case of Girdhari Lal v. Emperor : AIR1931All12 , a Bench of this Court also interfered in revision with the order of the District Magistrate in spite of the fact that no application had been presented to the Court of the Sessions Judge. In both these cases it is to be noted that the application was presented, not by the person who had been convicted by the Magistrate, but by some person who was no party to the proceedings at all and who wished to intervene either as amicus curiae or it may be in the interests of the public. In still another case of Balkrishna Sharma v. Emperor : AIR1932All125 , the present Chief Justice admitted an application for revision when no application had been made to the Sessions Judge, and remarked:
No doubt it is the general practice of this Court not to entertain a revision when the applicant could have gone to the superior Court of the District Magistrate or the Sessions Judge, but of course even a settled practice does not oust the jurisdiction of the High Court.
3. This was not a case in which a third party had intervened, but there was a special circumstance in that the offence was not under Section 124-A, which is triable either by the District Magistrate, or the Sessions Judge, and the appeal lies in either case direct to the High Court. No doubt the practice laid down in Sharif Ahmad v. Qabal Singh, has been followed in numerous cases but it has not been invariably followed, and as I have shown there is authority for departing from it in cases where an application is presented by an outsider to the proceedings, or where the appeal from the Court, whose order is challenged lies direct to the High Court. It can, of course, not be questioned that the High Court has jurisdiction to intervene in revision where it is necessary for the ends of justice, and although I think it must be taken still to be the invariable practice of the Court to refuse to entertain applications in revision where there are no special circumstances such as those that I have referred to above, it cannot be held to be bound to refuse an application in every case merely because it has not been presented in the lower Court of appeal. I have therefore heard this application and the connected one on their merits.
4. There is a special reason for admitting and bearing the present application, for the case appears to be one in which the person convicted, B. Parshottam Das Tandon, was by no means unwilling to be convicted, and the Magistrate has accommodated him without being entirely satisfied that the charge had been proved by the prosecution. This charge was of having persisted in the management of the Allahabad Town Congress Commitee, an unlawful association. It has been pointed by Mr. K.D. Malaviya that although the Allahabad Town Congress Commmittee has been declared to be an unlawful, association by the Local Government, there are several branches of the Congress organization which have not been declared to be unlawful, and there was no positive evidence in this case to pove that the accused had been assisting the Allahabad Town Congress Committee as distinguished from other associations. The evidence against him was of three kinds. There was that of a Sub-Inspector, Amjad Ali, to testify that it was to his personal knowledge that the accused had been collecting subscriptions on behalf of the Congress and meeting Congress leaders. We may well have done so, but unless it could be proved that he had been collecting subscriptions on behalf of the Allahabad Town Congress Committee the statement of the witness does not definitely show that the accused was assisting that committee. It was further shown that the accused with some others made himself prominent in connection with a meeting called in the Parshottam Das Park which the Magistrate has found to be a 'Congress meeting.' But there is no evidence to show that it was convened or held under the auspices of the Allahabad Town Congress Committee. Lastly there was the evidence of some accounts, on which however the Magistrate has not relied because he has accepted the word of the accused that they were purely private accounts and had nothing to do with the Allahabad Town Congress Committee. As the Magistrate himself says, the prosecution evidence was not very strong or vary circumstancial, and in order to convict the accused he was compelled to rely on the fact that the accused himself, although he made a statement apparently of considerable length and. referred to the accounts, did not deny that he had been doing work for Congress.
5. I think it is clear from the judgment of the Magistrate that he was doubtful of the soundness of the case and would have acquired the accused if the accused himself had made any-serious effort to avoid a conviction.
6. The circumstances, as I have suggested earlier in this judgment, evidently were that the accused was anxious or willing to go to jail and the Magistrate was ready to accommodate him. This however was not a judicial point of view. The Courts are bound of course, to protect the liberty of the individual, but even when the individual does not claim that protection and is ready to forego his liberty the Courts have to consider that there are other questions than the wishes of the parties to the proceedings by which they have to be guided. If the accused is sent to jail he has to be confined there and maintained there at the expense of the public, and whether his wish to go to jail arises from political or economical motives, it is the duty of the Courts to protect the tax-payer. I think, therefore that the present applicant is entitled to succeed, and that the order convicting B. Parshottam Das Tandon and sentencing him to six months' R.I. must be set aside on the ground that no offence has been proved by the evidence for the prosecution, and I order accordingly.