1. This is an application in revision arising out of the following facts : Mr. W. A. Hearsey directed Mr. R. C. D. Ewing, who was engaged as his legal adviser in connection with certain pending litigation, to address a letter on his behalf to Mrs. Eva Forster. In reply a letter was written by the aforesaid Mrs. Forster containing expressions alleged to be defamatory of Mr. W. A. Hearsey. A prosecution for defamation under Section 500 of the Indian Penal Code was, thereupon, instituted on the complaint of Mr. W. A. Hearsey against Mrs. Forster, and in this prosecution, Mr. R. C. D. Ewing, who is a Barrister-at-Law, appears as Counsel to conduct the case on behalf of the complainant. In so acting, I have no doubt, that Mr. Ewing committed an error of judgment, and that he would have taken a more proper view of his professional obligations if he had declined to accept Mr. Hearsey's brief in this particular case. The result was the introduction of various difficulties and complications into the trial of the case. The Court actually found it necessary to direct that Mr. Ewing should not be present in Court while witnesses for the defence were being examined-in-chief. This extraordinary state of things only arose because of the anomalous position occupied by Mr. Ewing as Counsel for the prosecution and principal witness on his own side. Another difficulty which arose was as to the competence of Mr. Ewing to give evidence in the case at all. This question was not raised until after Mr. Ewing had given evidence-in-chief, and had undergone some cross-examination. Even then the witness was only asked on behalf of the defence whether he had his client's express permission to give evidence. After the accused had been examined, a charge framed and evidence for the defence recorded, the Magistrate in proceeding to judgment ruled that the whole of the evidence given by Mr. Ewing was inadmissible, and on this ruling he based his finding that the charge was not proved against the accused.
2. The case has been brought before this Court on an application for revision by Mr. W. A. Hearsey, which was admitted by a learned Judge of this Court on the 3rd January 1914. One point which has been taken before me to-day is that it is against the practice of this Court to interfere with orders of acquittal in the exercise of its revisional jurisdiction. I have no doubt there are many cases in which this Court might properly refuse to interfere with an order of acquittal, merely on the ground that an adequate remedy against any serious failure of justice is provided by the right of appeal reserved under law to the Local Government, and that the revisional jurisdiction of this Court was not intended to be used for the benefit of a vindictive complainant who desired to persist in some charge, which he had failed to substantiate on inquiry and trial. In the present case the question raised is of a peculiar kind. The evidence of Mr. Ewing had been admitted on to the record and was ruled out by the Magistrate only when he came to pass [judgment. There has been no trial of the case on the merits, and if the Magistrate was wrong in ruling out Mr. Ewing's evidence there has been no real trial at all. Moreover, this application in revision has been admitted and notice ordered to issue by another learned Judge of this Court, and both for this reason as well as in accordance with my own views, I consider that I shall not be acting improperly in exercising the revisional jurisdiction of this Court in the matter. I am quite satisfied that the Magistrate was in error in ruling out Mr. Ewing's evidence as inadmissible. He has relied upon a ruling of the Bombay High Court Sethna R. D. v. Mirza Mahomed Shirazi 9 Bom.L.R. 1044,. That ruling is at any rate no authority for the position taken up by the Magistrate in this case. If he had taken exception at the moment when Mr. Ewing stepped into the witness-box and had then and there expressed his opinion that Mr. Ewing, as Counsel for the prosecution, would be committing a breach of the professional etiquette in tendering himself as the principal witness for the prosecution, the proceedings would, no doubt, have taken a different course. The Bombay ruling above referred to is at least an authority for this proposition, that if under the circumstances above suggested Mr. Ewing had persisted in disregarding the opinion of the Court and claimed as of right to put himself into the witness-box, while still retaining the position of Counsel for the prosecution, the Magistrate might have been justified in refusing to allow Mr. Ewing to examine himself. This is quite a different thing from saying that evidence which has been taken and placed on the record is irrelevant. In order to determine this point I feel myself precluded from considering matters outside the purview of the Indian Evidence Act (I of 1872). As regards the bulk of Mr. Ewing's evidence, I can find no possible section of this Act under which it could be treated as irrelvant. With regard to one or two questions put to Mr. Ewing, there may perhaps be some controversy as to the applicability of Section 126 of Act I of 1872, but it is sufficient for my purpose to say that the Court below was, in my opinion, clearly in error in ruling out the essential parts of Mr. Ewing's evidence. After carefully considering the nature of the order which I ought to pass in the present case, I have decided that it would certainly be inadvisible for me to order the Magistrate to take up the case at the stage which it had reached when he came to pronounce the judgment. Taking this view, I do not see that any good purpose would be served by my ordering a fresh trial of the complaint as brought. It is sufficient for me to set aside, and I do hereby set aside, the order of acquittal passed by the Magistrate. Let the papers be returned.