G.K. Misra, J.
1. Prosecution case is that on 11.5.64 at about 11 A.M. the Sarpanch (P.W. 1) of village Kamthana Gram Panchayat, the Naib Sarpanch (P.W. 2) and the President (P.W. 8) of the Grain Gola issued tickets for catching fish from a Kata in village Borbhata. The petitioners amongst others purchased tickets and entered inside the tank for catching fish. They were not able to catch fish and demanded return of the money paid for the tickets from P.W. 1. On his refusal to return the money back, the petitioners surrounded him and abused in filthy language saying:
Sala Maghia, Tor Maku Gihabu, Salar Dadhlra Diasili Maridebu, Salaku Pani Bhitare Kaduare Madi Debu.
In other words they said that they would have sexual intercourse with the mother of P.W. 1, would set fire to his beard and would kill him by trampling him down inside the water. The defence was one of complete denial.
2. Eights witnesses were examined for the prosecution. The learned Magistrate, after thorough discussion of evidence, found the six petitioners guilty under Section 294, I.P.C. and sentenced each of them to pay a fine of Rs. 50, in default, to undergo R.I. for 20 days. He directed that Rs. 200/- was to be paid to P.W. 1 out of the fines, if realised. Against the judgment of the learned Magistrate, the petitioners filed a criminal revision before the learned Sessions Judge, Bolangir Kalahandi, who has made the reference for quashing the conviction.
3. The learned Sessions Judge discussed the evidence of all the prosecution witnesses and came to the conclusion that the petitioners did not use any other abusive language excepting 'Salake Dadhi Podi Debu, Matire Poti Debu.' He held that from the materials on record it could not be said that the accused persons hurled any abusive languages against P.W. 1. He further held that the so-called abusive words were only rustic abuses and were not likely to cause annoyance to the public who were present at the place of occurrence, On the aforesaid finding this reference has been made under Section 438, Criminal P.C., for quashing the conviction.
4. It would thus appear from the aforesaid analysis of the judgment of the learned Sessions Judge that on discussion of evidence he disbelieved major part of the abusive language used by the petitioners, and on the basis of the residue he came to the conclusion that the words used were merely vulgar abuses and did not make out any offence under Section 294, I.P.C. This approach of the learned Sessions Judge necessitates a thorough examination of the jurisdiction of the Court under Section 488, Criminal P.C. Under Section 435, Criminal P.C., the High Court or any Sessions Judge or District Magistrate, or any Sub-Divisional Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceeding before any inferior Criminal Court for the purpose of satisfying itself or himself as to correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of the proceeding of such inferior Court. Under Section 488, Criminal P.C., the Sessions Judge or District Magistrate may, if he thinks fit, on examining under Section 435 or otherwise the record of any proceeding, report for the orders of the High Court. Thus on the plain language of Sections 485 and 438, read together, the Sessions Judge or the District Magistrate has been vested with powers to make a report to the High Court regarding the correctness, legality or propriety of the finding of a subordinate Magistrate. The reference is thus not confined merely to the question of law, but has been extended to an examination of the correctness or the propriety of the finding which necessarily involves the concept of an examination of the materials on record relating to facts.
Under Section 296, Criminal P.C., 1882, reference was permissible only when the Court was of opinion that the judgment or order was contrary to law, or that the punishment was too severe or inadequate. On the law, as it then stood, the decisions were to the effect that reference could not be made unless it involved a point of law. It could not be made on the ground of insufficiency or incredibility of the evidence. The Legislature, however, has made material alterations in the Code of 1898. It is for this reason some High Courts are of the view that under the present Code, a reference may also be made when the order is against the weight of evidence. Despite material alteration in the power for reference, the consensus of opinion amongst the High Courts is that the jurisdiction to make a reference must be read in the context of the powers exercised by the High Court in its revisional jurisdiction under Section 489(1), Criminal P.C.
5. Section 439(1) lays down that in the case of any proceeding the record of which baa been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, (in its discretion), exercise any of the powers conferred on a Court of Appeal by Sections 428, 426, 427 and 428.... The underlined (bracketed heroic, Ed.) expression furnishes the clue to the exercise of power. In AIR 1931 Cal 619 Fakir Chand v. Madar Mandal, the Bench presided over by Rankin, C.J. laid down the limits within which the revisional powers are to be exercised. Their Lordships observed-
At one time, before the Code was revised in 1882, the revisional power of the Court was limited to material errors of law committed in judicial proceedings and at that time such a reference as this would have been hopelessly misconceived. But since then, the power of the High Court has extended to correctness, legality or propriety of the order and, as a matter of jurisdiction the revisional power is not confined to matters of law. It is probably a thing which this Court will always refuse to do to fetter its hands by any attempt to crystallize its discretion by general principles. Interference in revision is a matter which will be undertaken or left alone upon a consideration of the character of the case as a whole and in detail. But it is quite obvious that, unless this Court is going to do again the work of all the Magistrates in the whole of the province, it must, as a matter of practice, restrict the special power that it has got to suitable cases, and the first which has always been observed is that this Court will not go into evidence unless it is necessary to do so by reason of special circumstances or by reason of the character of the error of law. There must appear, on the face of the judgment or of the order complained of or of the record, some ground which need not always be a ground of law to induce this Court to think that the evidence ought to be examined In order to see whether there has been a miscarriage of justice, and it is not the right of a party to claim that the Court should investigate the facts merely on the allegation that there should be another trial because he has not succeeded before the lower Court. This being the principle upon which our powers in revision are exercised the nest thing that is to be observed is that referring Courts must always bear in mind the limits which the High Court has in practice upon its own discretion, and they should not make a reference where the only objection is the findings of the Court below upon the merits. It is not the rule of the Court to interfere with decisions on facts upon evidence except for especial reasons and the referring Courts have again and again been asked to make their references subject to this consideration. Moreover, they have to make their references in the form prescribed by this Court's circular orders from which it clearly appears that they have to state in what particular portion of the order the Court making the reference considers an error on a point of law to exist.
This view has never been departed from in the Calcutta, Patna or Orissa High Courts, see AIR 1937 Pat 110.
6. The legal position may be summarised thus - Though the words 'correctness, legality or propriety' in Section 435 are very wide in their connotation, the revisional power under Section 439 has been delimited by the High Court itself. Such a limitation has been put not due to lack of powers but due to the observance of a wholesome practice not to interfere with the orders of the subordinate Magistrates purely on assessment of evidence unless they lead to gross miscarriage of justice, or unless they involve examination of some exceptional principles of law. Such exceptional cases also arise when on the evidence no offence is made out. As the High Court has put upon its wide powers self-imposed restriction which would be examined by itself on the facts and circumstances of each case, the practice of making reference under Section 488 Criminal P.C., on merits based on reappraisement of evidence has been condemned. The user of that exceptional power of interference in revision based on sifting of evidence must be left to the High Court itself when the party directly comes up in revision to the High Court.
7. On the aforesaid tests it is manifest that the learned Sessions Judge came to a different finding on fact to the actual words used by thorough assessment of evidence. He misconceived the scope of his powers under Section 438, Criminal P.C.
8. The next question for consideration is whether an offence under Section 294, Penal Code, is made out on the finding recorded by the learned Magistrate that the petitioners surrounded the Sarpanch and abused him in filthy languages that they would have sexual intercourse with his mother, would set fire to his beard and would kill him by trampling him down inside the water.
9. Section 294, Penal Code, may be quoted-
Whoever, to the annoyance of others,
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene songs, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which any extend to three months, or with fine, or with both.
There can be no controversy that the petitioners uttered obscene words in a public place. The only point for consideration is whether the words so uttered were to the annoyance of P.W. 1. On a perusal of the evidence of P.W. 1 and other witnesses, who were on the spot, it is clear that annoyance was caused to P.W. 1. All the elements of the section have thus been fulfilled. On the finding of the learned Magistrate the offence has been made out, and the petitioners were righly convicted.
10. The reference is misconceived and is ac. cordingly discharged.