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Judgment
Mullick, J.—If appears that the petitioner was convicted by a Deputy Magistrate exercising first class powers of an offence u/s 323 of the Indian Penal Code and sentenced to pay a fine of Rs. 50. The petitioner then moved the Sessions Judge to exercise his revisional powers and to refer the case to the High Court. It was then discovered that the record of the case was lost, so that the, learned Sessions Judge could obtain no materials upon which to make his reference. He has, therefore, asked this Court to set aside the conviction and sentence and to order a re-trial.
In my opinion this is just one of those cases in which a re-trial should not be ordered.
The loss of a record after conviction is no ground for the acquittal of the accused, for the logical conclusion from such an argument would be that in the event of a wholesale destruction of records by fire or earthquake, all accused persons whose records had been lost and who sought relief in appeal or revision would be entitled to acquittal. There is no authority in law for such a proposition.
If this had been a serious case in which the accused had been sentenced to a substantial term of imprisonment, there might, have been some ground for directing a re-trial; but the case is a petty one, the fine inflicted small, and the Trial Magistrate an officer exercising first class powers. I do not think that in a case of this kind I should exercise my revisional powers either to set aside the conviction or direct a re-trial.
The reference is accordingly discharged.