- (1.)THIS is a Rule issued against the order of a learned Magistrate acquitting the accused Opposite parties for non production of witnesses. At the outset Mr. K. M. Yusuf, learned advocate appearing for the State urges that the application is not maintainable because this was a State prosecution and the State has not come up in revision but a private party, and in support of his contention he cites the case of (1) Thakur Ram and ethers v. The State of Bihar A. I. R. 1966 S. C. 911 which lays down that the court should not be used as a forum to satisfy the vengeance of a private party.
(2.)MR. Prasun Kumar Chowdhury (with Mr. Amaresh Kumar Mitra), learned advocate appearing for the petitioner on the other hand cites the case of (2) Khatra Basi Samal and another v. The State of Orissa A. I. R. 1970 S. C 272, which says that ordinarily the State should come up for revision in case the state is not satisfied with the order, but that does not debar the power of the court to exercise its revisional jurisdiction in exceptional cases, for example, when there has been a glaring wrong procedure followed. It says that the revisional jurisdiction would only be exercised in exceptional cases where the interests of public justice require interference for correction of a manifest illegality or the prevention of a gross miscarriage of justice. Similarly the court will interfere when there is glaring defect in the procedure and there is a manifest error on a point of law and consequently, there has been a flagrant miscarriage of justice. In any event, in our view, as the Rule has been issued by this Court and the matter is before us, the preliminary point has lost much of its force.
(3.)IN any event, in the present case we find that the last order of the learned magistrate was passed on 21/12/1970 from which the petitioner has come up before us. The order runs as follows :
"all the accused present No. P. Ws. C. S. I. files remand with 2 M. Cs. of 2 P. Ws. The M. Cs. are not convincing. Inspite of repeated adjournments, no evidence is forthcoming. Further adjournment will merely harass the accede. The act are acquitted for lack of evidence. "