Emperor Vs. Sitaram Narayan Ghogle

criminal procedure code [act v of 1898), section 438-reference-high court.;where a sessions judge once declines to make a reference to the high court, under section 438 of the criminal procedure code, he is not thereby debarred from making another reference in the same case in view of the facts that come subsequently to his knowledge. - indian succession act (39 of 1925), section 63: [s.b. sinha & cyriac joseph, jj] will validity - deceased, was a very wealthy person - he floated several companies - he left behind his daughters, s and j - he was suffering from various diseases including some neurological ones - for his treatment, he used to frequently visit united states of america accompanied by his wife and daughter - by reason of a will, he is said to have bequeathed 50% of his property to s and 50% to j in a letter addressed to the 1st respondent, viz., s, he is purported to have recorded that the he had given all his shares to her - will was not only unnatural but was surrounded by a large number of suspicious circumstances held, it is a fit case where the high court should have appointed a receiver and/or an administrator with suitable directions. s alone had been given exclusive powers not only to execute documents but also induct tenants. - on the other hand, the ground of the reference is based on subsequent facts which came to the knowledge of the sessions judge, and it seems to me that section 438 of the criminal procedure code permits a reference in such a case, even although the sessions judge may have before that seen no reason to interfere after examination of the case in the ordinary way under section 435. the wide words 'or otherwise' are put in to meet exceptional cases;.....to make this reference. he has in january 1926 refused to make any reference in the case, and it is contended that the present reference is therefore practically a review of that decision. on the other hand, the ground of the reference is based on subsequent facts which came to the knowledge of the sessions judge, and it seems to me that section 438 of the criminal procedure code permits a reference in such a case, even although the sessions judge may have before that seen no reason to interfere after examination of the case in the ordinary way under section 435. the wide words 'or otherwise' are put in to meet exceptional cases; and there might, for instance, be a case where there was clear evidence of some gross miscarriage of justice having occurred, which ought to be brought to the notice of the revisional court, although, in the absence of knowledge of such evidence, an application for revision might have been previously rejected under section 435 read with section 438 of the code. therefore, we do not think we should hold that we cannot go into the matter. in any case, we have jurisdiction under section 439 to consider the questions arising, although we ignored the report of the sessions judge. on the merits, however, we are not disposed to interfere. the result of the conviction was only a small fine of rs. 10 in one case and rs. 5 in another. the particular question of there being a combination in the village against capt. ghogle and his family was in fact a point considered in the case by the magistrate. it would be contrary to the ordinary practice of this court to go into the evidence adduced, and having regard to the small fines inflicted we do not think there is sufficient reason to depart from our practice. so far as the stigma on capt. ghogle is concerned, he can quote in his favour the reference by the sessions judge, and that, of course, will considerably detract from the result of the conviction.2.the record to be returned accordingly.