G.K. Misra, J.
1. An F.I.R. was lodged to the effect that at midnight on 13th of July, 1964 about eighty persons including the accused (opp. parties) came to the Khamar house of Nanda Kishore Panigrahi (petitioner) and dealt heavy blows on the door of his house. P.W. 2, brother of the petitioner and P. W. 3, his cook were sleeping inside. They refused to open the door. The accused removed the door leaves with crow bars and threatened to assault P. Ws. 2 and 3. The miscreants entered the house, dragged P. W. 3 out of the house and drove out P. W 2. They removed 657 pitchers of molasses and other articles from the house. Thus an offence under Section 395 I. P. C. was made out.
After investigation, police submitted a final report stating that though the case was true, the evidence was insufficient. The petitioner filed a protest petition before the Judicial Magistrate, Banki with a prayer that the police should be called upon to submit a charge sheet under Sections 380/457 I. P. C. On the direction of the Magistrate, police submitted a charge sheet under those sections. The defence was one of denial and that the case had been falsely foisted due to enmity. After trial, the Magistrate acquitted the accused on 20th December, 1965 Against the order of acquittal the revision has been filed.
2. Mr. Palit advanced two contentions.
(i) The order of acquittal under Sections 380/457 I. P. C. is bad in law;
(ii) The case having disclosed an offence under Section 395 I. P. C., the Magistrate had no jurisdiction to try the case and the entire proceeding was void and without jurisdiction. The case should be remanded for trial after setting aside the order of acquittal.
3. Though it is open to the High Court in revision to set aside an order of acquittal even at the instance of a private party and even where the State did not file any appeal, the jurisdiction is to be exercised only in exceptional cases when there is some glaring defect in the procedure or there is a manifest error on point of law resulting in a flagrant miscarriage of justice The High Court cannot, however, resort to indirect methods of ordering retrial when it cannot itself directly convert a finding of acquittal into one of conviction. It is not possible to lay down exhaustive tests for determination of such exceptional cases. See AIR 1962 S.C. 1788, K. Chinna Swamy v. State of Andhra Pradesh.
The acquittal order in this case is based on pure assessment of evidence. P. W. 2 is the brother and P. W. 3 is the cook of the informant (p. w. 1). As they were interested and there was enmity between the petitioner and some of the accused, the learned Magistrate placed before him the proper approach that some corroboration was essential before their evidence was accepted. He did not place any reliance on the evidence of P. Ws. 4 and 5 and accordingly did not accept the evidence of P. Ws. 1 to 3. Thus, on merits, the order of acquittal is well founded. There is hardly any scope for interference. The first contention is rejected.
4. The second contention requires careful examination. The F.I.R. disclosed an offence under Section 395 I.P.C. Though the prayer in the protest petition specifically mentioned of offences under Sections 380/457 I.P.C., the contents of the petition clearly showed facts relating to an offence under Section 395 I.P.C. An offence under this section is triable only by a court of session. The learned Magistrate should have done well in making an enquiry for commitment and if the materials on record justified commitment, he should have committed the case to sessions. Without applying his mind to the facts of the case, he, however, charged the accused under Section 380/457 I. P. C. Thus, though the facts of the case disclosed the commission of a much graver offence the learned Magistrate ignored the circumstances of aggravation and tried the case for offences which were within his jurisdiction.
5. On the aforesaid finding, the following questions arise for consideration:
(1) Is the trial for offences under sections 380/457 I.P.C. without jurisdiction when the facts of the case disclose a more serious offence under Section 395 I. P C. which is exclusively triable by sessions and is beyond the jurisdiction of the Magistrate.
(2) Is the High Court to interfere in revision in such cases except when there is flagrant miscarriage of justice?
6. The contention that such a proceeding is void and without jurisdiction is based on the provisions of Section 530 (p) Cr P.C The section runs thus:
'If any Magistrate, not being empowered by law in this behalf, does any of the following things namely:
..... (p) tries (sic) offender:
..... his proceedings shall be void.'
It is to be noted that in this case, the Magistrate tried the accused persons under Sections 380/457 I.P.C. which are within his jurisdiction. A first class Magistrate is empowered by law to try such offences. The proceedings on the plain language of the section cannot therefore be void.
7. But on this question, there was sharp conflict of authorities. One of the views was that the proceeding is not 'without jurisdiction' but 'improper'. Even when it is improper, the revising or appellate authorities would not set aside such a proceeding and order a fresh trial unless it was necessary in the interest of justice. A proceeding without jurisdiction is void. A proceeding which is improper is liable to be set aside though not void. The classical authority on this view is to be found in (1901) ILR 24 Mad 675, King Emperor v. Ayyan. It has been followed in AIR 1926 Pat 393, Balgobind v. Emperor and AIR 1927 Mad 307, Kattuva v. Suppan.
The opposite view that the proceeding is without jurisdiction and void and that a retrial should be ordered in respect of the graver offence is to be found in 6 Cal WN 713, Bisu v. Taher; AIR 1925 All. 290, Raghunandan v. Emperor, and AIR 1941 Pat 287, Ram Lakhan v. Racheya.
8. The Supreme Court in Ramekbal Tiwary v. Madan Mohan Tiwary, (1967) 1 S.C.W.R. 249 :(AIR 1967 S.C. 1156), accepted the latter view as correct. Their Lordships said--
'Take, for instance, a case where on a certain state of facts the accused is alleged by the prosecution to have committed a very grave offence, say under Section 302, Indian Penal Code exclusively triable by the Court of Session, but the Magistrate thinks that the offence falls under Section 304A which he can try and after trying the accused either convicts or acquits him.
In either case the result would be that the appropriate court will be prevented from trying the accused for the graver offence which those very facts disclose. It is to obviate such a consequence and to prevent inferior Courts from exercising a jurisdiction which they do not possess that the provisions of Section 437, Criminal Procedure Code have been enacted. To say that these provisions can be availed of only where an express order of discharge is made by a Magistrate would be to render those provisions ineffective and inapplicable to the very class of cases for which they were intended.'
The same view had been expressed by this Court in AIR 1966 Orissa 95. Nila v. Shyamsunder
In view of the legal position, the trial of the case under Sections 380/457 I.P.C. by the Magistrate, first class was without jurisdiction and void.
9. The next question for consideration is whether this Court would interfere in revision and direct a retrial under Section 395 I.P.C No hard and fast rule can be laid down The conclusion would vary according to the facts and circumstances of each case.
10. In this case, the tacts and circumstances are such that an order for retrial would not be conducive to the cause of justice.
It was well known to the informant that the facts alleged made out an offence under Section 395 I.P.C.. When the charge was framed under Sections 380/457 I.P.C., an objection could have been raised at the earliest opportunity. Attention of the learned Magistrate should have been drawn to the averment of facts relating to an offence under Section 395 I.P.C. The Magistrate himself could have been aroused to his senses and could have made an enquiry under Chapter 18, Criminal Procedure Code for commitment.
11. Morever, framing of a charge by the Magistrate under Sections 380/457 I.P.C. amounts to discharge of the accused under Section 395 I.P.C.. If the Magistrate had refused to exercise his iurisdiction to make an enquiry for commitment, the petitioner should have invoked the iurisdiction of the Sessions Judge under Section 437 Cr. P. C.. Under that section, on examining the record, if the Sessions Judge would! have been satisfied that the case is triable exclusively bv the Court of Session and that the accused had been improperly discharged, the Sessions Judge could have ordered for commitment of the accused for trial under an offence in respect of which he was improperly discharged. No express order of discharge for that purpose is necessary. The aforesaid Supreme Court decision conclusively resolves this question also.
12. It is well settled that where a Court of Session has got jurisdiction to finally dispose of a matter, the High Court would not ordinarily interfere in revision unless the jurisdiction of the Sessions Judge is invoked in the first instance. See (1967) 33 Cut LT 38= (AIR 1967 Orissa 62). Banchanidhi v. Srinibas.
The petitioner not only failed to raise objection at the earliest opportunity before the trial court, but also to invoke the jurisdiction of the Sessions Judge under Section 437 Cr. P. C. The result was that the accused had to undergo the travail of a full-fledged trial ending in acquittal. A direction for retrial in such circumstances would result in harassment of the accused and flagrant miscarriage of justice. Thus, though the judgment under revision is without iurisdiction and as such void, it would not subserve the cause of justice in ordering a trial under Section 395 I.P.C.
13. The revision fails and is dismissed