In Re: Eravadu and Others

Somasundaram, J.—There is no doubt that u/s 380 Criminal P. C., the Joint Magistrate has not power to acquit. Vide Public Prosecutor v.

Gurappa Naidu 57 Mad. 85: A. I. R. 1933 Mad. 728 : 34 Cr. L. J. 1045, Piramangaya, Pandara v. Emperor, 1943 M. W. N. Crl. 9: AIR 1943

Mad. 390: 44 Cr. L. J. 668. In re Doraiswami Naidu, I. L. R. (1946) Mad. 891: A. I. R. 1945 Mad. 302: 47 Cr. L. J. 178.

Even so under Rule 263, Criminal Rules of Practice, the District Magistrate, if he is of opinion that the order of acquittal is wrong, must request

the Government to prefer an appeal u/s 417, Criminal P. C., and not report the case to this Court for order under Rule 438, Criminal P. C.

Further, u/s 439, Clause (5), Criminal P. C., where an appeal lies and no appeal is brought, proceedings by way of revision shall not be

entertained at the instance of the party who could have appealed. In this case, the District Magistrate could certainly have requested the

Government to file an appeal but he did not do so. So u/s 439, Clause (5), Criminal P. C., this reference is not competent. On going through the

records. I am satisfied that the evidence is not such as to warrant a conviction of the accused. In this case, I do not wish to interfere with the

acquittal.

The reference is therefore not accepted.