1. This case has been, laid before me under the provisions of Section 429, read with Section 439 of the Code of Criminal Procedure, owing to there being a difference of opinion between the learned Chief Justice and Teunon J. before whom the case came
2. Twenty-three persons were charged with having committed an offence punishable under Section 148 of the Indian Penal Code. After a trial which lasted about three months the Magistrate acquitted all the accused. An application was then made to this Court to set aside the acquittal and to direct a retrial That application came on before Sharfuddin and Teunon JJ. who issued a Rule on the opposite party to show cause why the order of acquittal should not be set aside and a retrial ordered. The Rule subsequently came on for hearing before the learned Chief Justice and Teunon J. who differed in opinion, the Chief Justice being of opinion that the Rule ought to be discharged, whilst Teunon J. was of opinion that the Rule should be made absolute.
3. The application to set aside the order of acquittal, is opposed both by the accused and by the Local. Government.
4. The. present application raises a point of considerable public importance namely-ought the Court ordinarily to exercise the powers, which it undoubtedly has under Section 439 of the Code of Criminal Procedure, to set aside an order of acquittal at the instance of a private prosecutor? All the High Courts in India have for many years past consistently held that they ought not so lo do. It will be sufficient if I give the references to the reported cases in support of this proposition. They are Queen-Empress v. Shekh Saheb Badrudin (1883) I. L. R. 8 Bum. 197., Heerabai v. Framji Bhikaji (1890) I. L. R. 15 Bom. 349., Thandavan v. Perianna (1890) I. L. R. 14 Mad. 363., Queen-Empress v. Ala Bakhsh (1884) I. L. R. 6 All 484., Queen-Empress v. Prag Dat (1898) I. L. R. 20 All. 459., In the matter of Sheikh, Aminuddin (1902) I. L. R. 24 All. 346., Qayyum Ali v. Faiyaz Ali (1900) I. L. R. 27 All. 359., In re Municipal Committee of Dacca v. Hingoo Raj (1882) I. L. R. 8 Calc. 895., Deputy Legal Remembrancer v. Karuna Baistobi (1894) I. L. R. 22 Calc. 164. The learned Chief Justice was of opinion that the settled practice of the Courts founded on sound judicial opinion and public grounds should be adhered to.
5. Tendon. J, on the other hand, was of opinion that, as Section 439 of the Code of Criminal Procedure is drawn in the widest terms, no nee via as decisions could in any manner fetter the way in which the Court should exercise the discretion vested in it under the section. In. support of this view, Teunon J. referred to certain remarks of the Chief Justice in the case In re An Attorney (1913) I. L. R. 41 Calc. 446. Bat with all due respect to the learned Judge those remarks of the learned Chief Justice do not affect the point under consideration. The Deputy Legal Remembrancer informed me that some four or five Rules have of recent times been granted by this Court on applications by private prosecutors to set aside orders of acquittal. He, however, also informed me that all these Rules excepting one were granted by the Bench which granted the Rule in the present case. That cannot, in my opinion, be taken as casting doubt on the well established rule adhered to both in this Court and in the other High Courts in India over a long series of years. That rule is founded on grounds of public interest and convenience and ought, I think, to be adhered to.
6. In addition to the difference of opinion of the learned Judges in the present case as to there being a settled practice that the Court will not ordinarily interfere in revision at the instance of a private prosecutor with an order of acquittal, the learned Judges also differed as to whether the circumstances in this case were such as would induce the Court in any event to interfere.
7. The learned Chief Justice was of opinion that there was no reason to think that the Magistrate, whose judgment rests on an appreciation of the evidence that had been given before him, came to a, wrong conclusion. Teunon J., on the other hand, thought that there were strong grounds for thinking that the judgment of the Magistrate amounted to a miscarriage of justice. I see no reason to assent to the view of Teunon J.
8. No one can doubt that the complainant in this case is merely the creature of Ram Khelawan Tewari, and that this prosecution forms one of a series of cases in which Ram Khelawan Tewari has tried to enforce his right to the land in question.
9. I, therefore, agree with the view set out by the learned Chief Justice in his judgment. The Rule must, therefore, be discharged.