S.D. Singh, J. - (1.) THIS is an application Under Section 561 -A of the Code of Criminal Procedure for an order of retrial passed by the Assistant Sessions Judge, Ghazipur being quashed.
(2.) THE Applicant was prosecuted Under Section 299(1) of the UP Municipalities Act in respect of certain encroachments which he was alleged to have made within the Notified Area of Mohammadabad in district Ghazipur. He was tried in the court of the Tahsildar -Magistrate, Ghazipur, who convicted hi n for the aforesaid offence and sentenced him to a fine of Rs. 50/ - . The Applicant went up in appeal which was heard by the Assistant Sessions Judge, who found a number of irregularities in the trial and as a result thereof set aside the conviction and directed a retrial in accordance with law. It is against this order that the Applicant has come up to this Court and wants the exercise of its inherent jurisdiction Under Section 561 -A aforesaid, which can be exercised only to prevent an abuse of the process of the court or otherwise to secure the ends of justice. I find neither of the two circumstances present in this case. It is certainly true that the Applicant will have to undergo a fresh trial which may not have been absolutely necessary and the offence also does not appear to me serious enough, inasmuch as he was, on his conviction, fined only Rs. 5/ - , but it is a case of encroachment on public land; and if such encroachments remain unpunished, it is the public who will suffer and the disadvantageous position in which the public is put on that account is not of temporary, but of a permanent nature, because once a person is acquitted of that offence the encroachment becomes permanent; and though it may in course of time grow in size, there is no possibility of its shrinking to even a small extent.
(3.) RELIANCE was placed by the Learned Counsel on two decided cases. One of them is Machander v. State of Hyderabad : AIR 1955 SC 792 but the facts of that case were quite different. In that case the accused was being tried Under Section 302 of the IPC. There was some irregularity in the examination of the accused Under Section 342 of the Code of Criminal Procedure on the basis of which his conviction was set side by the Supreme Court. The Supreme Court refused to direct a retrial not because a retrial is something which is always to be abhorred, but because in that particular case the accused had already undergone confinement for a perriod of four and a half years. In the case before us there is no question of confinement as the Applicant was never in jail.;