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A.T. Sankaralinga Mudaliar Vs. Narayana Mudaliar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1922Mad502; (1922)43MLJ369
AppellantA.T. Sankaralinga Mudaliar
RespondentNarayana Mudaliar and ors.
Cases ReferredFaujdar Thakur v. Kassi Chowdhury
Excerpt:
.....namely, the powers in revision of this court of setting aside this acquittal. but it has now been laid down in a long series of cases what, on that sort of application, should be the guiding principle to be acted upon by the court and i think it is very clearly stated in faujdar thakur v. the assessors were unanimous, the judge was satisfied with their finding and acquitted the accused with, no doubt, a desire to prevent either this charge being kept longer over the heads of persons who were in his view not guilty and he was going to acquit, or perhaps in order to avoid the necessity of letting them out on bail to come back again thereafter to hear their fate. 3. i agree and only wish to add this, that i am satisfied that this is a case in which we have a discretion and we need not..........under section 537 of the code of criminal procedure, no finding of a court is to be reversed on appeal or revision on account of any error, omission or irregularity in various matters including a judgment. in my view, assuming that the method adopted by the learned judge in this case is not a full compliance with sections 366 and 367, it is a mere irregularity and in my judgment, it is not open to us to set aside the acquittal on that ground alone. but this case gives rise to another interesting question, namely, the powers in revision of this court of setting aside this acquittal. where there is an appeal by the public prosecutor or the crown from an acquittal, the court sets its face against revision; but where a private prosecutor, having no power of appeal, comes to the court in.....
Judgment:
ORDER

Walter Salis Schwabe Kt., K.C., C.J.

1. This is a criminal revision petition against the acquittal of the accused on a charge of murder, in a case tried by the, Sessions Judge of Tinnevelly. The ground and the only ground on which we are asked to order a retrial is that the learned Judge did not deliver in Court his full reasons for acquitting the accused. At the end of a three weeks' trial he left certain specific questions to the assessors. The assessors agreed that the accused were not guilty and, in answer to a specific question, they agreed that certain witnesses for the prosecution, who were the principal witnesses, were not worthy of belief. The acting Sessions judge then wrote a document headed 'Judgment' setting forth the findings of the assessors and adding his own finding agreeing with the assessors that the accused were not guilty and they were acquitted. At a later date he wrote and prefixed to that judgment a full reasoned judgment dealing with the various points raised, the classes of witnesses and the reasons he had for believing or disbelieving those witnesses. It is agreed that that is not complying with the terms of Sections 366 and 367 of the Code of Criminal Procedure. Under Section 367 a judgment is to be written by the Judge containing the point or points for determination, the decision thereon and the reasons for the decision, and the same section, Sub-Section (4) dealing with acquittals says, 'If it be a judgment of acquittal, it shall state the offence of which the accused is acquitted and direct that he be set at liberty.' Now, the judgment that was delivered in Court complied with Section 367(4), because it stated, by a reference back to the question to the assessors the offence and directed that the accused be set at liberty. Whether that is a sufficient compliance with Section 366 or 367 is a difficult question. There is a dictum in Queen Empress v. Hargobind Singh I.L.R. (1892) All. 242 that it is not. The correctness of that dictum has certainly been questioned in Tilak Chandra Sarkar v. Balisagomoff I.L.R. (1896) Cal. 502. I do not think it is necessary in this case to express any view on that matter; because, under Section 537 of the Code of Criminal Procedure, no finding of a Court is to be reversed on appeal or revision on account of any error, omission or irregularity in various matters including a judgment. In my view, assuming that the method adopted by the learned Judge in this case is not a full compliance with Sections 366 and 367, it is a mere irregularity and in my judgment, it is not open to us to set aside the acquittal on that ground alone. But this case gives rise to another interesting question, namely, the powers in revision of this Court of setting aside this acquittal. Where there is an appeal by the Public Prosecutor or the Crown from an acquittal, the Court sets its face against revision; but where a private prosecutor, having no power of appeal, comes to the court in revision, it is certainly open to the Court to hear him. But it has now been laid down in a long series of cases what, on that sort of application, should be the guiding principle to be acted upon by the Court and I think it is very clearly stated in Faujdar Thakur v. Kassi Chowdhury (1914) L.R. 42 Cal. 612 by Jenkins C.J. There he reviewed the practice of all the High Courts in India on this point and summarised his conclusion in these words: 'I am not prepared to say the court has no jurisdiction to enquire on revision with an acquittal, but I hold it should ordinarily exercise this jurisdiction sparingly and only where it is urgently demanded in the interests of public justice. This view does not leave an aggrieved complainant without remedy; it would always be open to him to move the government to appeal under Section 417, and this appears to me the course that should be followed.' - that is to say that the private prosecutor can, if he likes, move the government to appeal. In this case the representative of the government has told us that having considered the matter the government would not appeal. But; if he cannot get redress that way, he can come before this Court on revision : but then the principle it that it is only to be granted 'where it is urgently demanded in the interests of public Justice,' Applying that to this case, how can it be said that it is urgently necessary in the interests of public justice that this acquittal should be set aside? The case lasted three weeks; it was tried out fully; the assessors were unanimous, the judge was satisfied with their finding and acquitted the accused with, no doubt, a desire to prevent either this charge being kept longer over the heads of persons who were in his view not guilty and he was going to acquit, or perhaps in order to avoid the necessity of letting them out on bail to come back again thereafter to hear their fate. He took the course which, on the face of it seems an eminently reasonable one of telling the men that they were acquitted and, in fact, gave his full reasons for the acquittal at another time and it ended there. Now, how it can be suggested that his having done that can amount to an urgent demand in the interests of public justice that the acquittal should be set aside, I cannot see. On these grounds, I think this petition should be dismissed. As regards the question of costs the case will be adjourned to to-morrow.

Oldfield, J.

2. I agree and have nothing to add.

Coutts Trotter, J.

3. I agree and only wish to add this, that I am satisfied that this is a case in which we have a discretion and we need not interfere if we like; and, speaking for myself, I cannot agree to the course suggested, namely, that people who have been tried for their lives for a month and acquitted should be made to undergo a re-trial at the instance of a private prosecutor when the government would not cone forward and urge such a case in the court of appeal.


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