1. This is a revision on behalf of the accused against the Judgment of the Sub-Divisional Magistrate, Peddapuram, dated 31-10-1955 confirming the conviction and sentence passed by the Sub-Magistrate.
2. The facts which give rise to this petition are: The accused were charged under Section 4(1)(b) of the Madras Prohibition Act 10 of 1937. The allegation was that on 13-7-1955 at about 11.30 a.m the head constable of Veleshwaram Police Out-post deposed to receiving the information that illicit distillation was being done in the ‘puntha’ leading from Appanapalam to Narendrapatnam. He proceeded to that place and on arrival at the scene of offence, he found the petitioners working a still. On seeing the raiders, the petitioners took to their heels. The still was dismantled, and the articles were seized. The prosecution examined 3 witnesses. The accused did not produce any defence evidence. The Sub-Magistrate on the evidence produced found the accused guilty under Section 4(1)(b) of the Madras Prohibition Act 10 of 1937 and convicted them as aforesaid. On appeal by the accused, the Sub-Divisional Magistrate confirmed the finding of the Sub-Magistrate. Hence this revision.
3. In this revision, learned counsel for the petitioners relying on the case of Syed Madar Sahib v. State of Andhra, 1956 Andh LT 185 (A), contended that the trial was vitiated under Section 495(4) of the Cr PC by reason of the fact that the officer who investigated the case conducted the prosecution and the Courts below have over-looked this matter. The learned Public Prosecutor in reply contended that this point was not taken up in the Courts below. He next urged that unless the accused shows that he has been prejudiced thereby, the trial would not be vitiated.
4. It is true that this point was not taken up by the accused in the Court below, but it is a legal point and can be raised in revision also. It is conceded by the Public Prosecutor that the case was conducted by the officer who investigated the case.
5. Section 495(4) is a mandatory provision,.which provides:
“An officer of police shall not be permitted to conduct the prosecution if he has taken any part in the investigation into the offence with respect to which the accused is being prosecuted.”
6. In Sellamuthu Padayachi v. State, 1953 Mad WN 665 : (AIR 1954 Mad 313) (B), a Division Bench of the Madras High Court held that the violation of the mandatory provisions of Section 495(4) of the Cr PC renders the entire trial null and void. Following the Division Bench decision, my learned brother Satyanarayana Raju, J. held in 1956 Andh LT 185 (A), that the entire trial was vitiated by reason of S. 495(4).
7. I do not find sufficient force in the contention of the learned Public Prosecutor that prejudice has not been proved. The very fact that the officer who investigated the matter conducted the prosecution is, in my opinion, sufficient to prejudice the accused.
8. I therefore hold that violation of S. 495(4) renders the proceedings null and void. The question arises whether the case should be sent I for retrial. It is stated before me that the accused have already undergone sentence for a period of 55 days. This is not disputed by the Public I Prosecutor. Having regard to this fact, I do not think that the ends of justice require that the case should be sent for retrial.
9. The revision is allowed, conviction and sentence passed upon the petitioners are set aside and the accused are acquitted. The bail bonds are cancelled.
R.G.D
10. Revision allowed.
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