JUDGMENT

Simpson, A J C - This is a reference by the learned Sessions Judge of Fyzabad. As the case is in revision, I take the facts from the judgment of the lower Appellate Court. It appears that the complainant Gopi is a petty zamindar of village Surmau and the accused Pt. Partab Narain is his tenant. Gopi asked Partab Narain to pay some arrears of rent. This request was made in the bazar of Sultanpur. Partab Narain answered that the rent would be set off as usual against the interest due to him on a loan. The result was a quarrel in the course of which Gopi Nath alleges that Partab Narain hit him three times on the head with a shoe while Partab Narain states that Gopi Nath caught him by his clothes and abused him. It was Partab Narain who reported the matter to the police and the police sent up a case of affray. Both accused have been discharged in that case. Partab Narain's case also resulted in a discharge. Gopi Nath filed a complaint and the Bench of Honorary Magistrates convicted Partab Narain under Sections 323 and 504 and sentenced him to pay a fine of Rs. 10. It is not specified under which section this sentence was imposed but in the reference of the learned Judge it is considered to have been under Section 323. Partab Narain appealed to the Deputy Commissioner and he took note of the fact that Partab Narain is also a member of the District Board and a Prohit of certain worthy people in the town of Sultanpur. The learned Deputy Commissioner declined to interfere with the conviction but looking at the antecedents of Partab Narain and the fact of his membership of the District Board he applied Section 562(1)(a) and released Partab Narain after due admonition. Gopi Nath then applied to the Sessions Judge in revision and the Sessions Judge has sent the case to me.

2. The procedure of the learned Deputy Commissioner is impugned on two grounds. The first is that Partab Narain has a previous conviction and therefore it was not open to Court to pass order under Section 562. The second is that the fact of Partab Narain's membership of the District Board ought not to have been taken into account.

3. As regards the first point the conviction referred to was under Section 143 and took place 20 years ago. No doubt it would have been a technical bar to the order if it had been proved in the trial. It is difficult to say what procedure the legislature intended in this respect. The section is headed first offenders and is intended primarily for first offenders; but the words used are "and no previous conviction is proved against him" which seems to preclude the idea of an inquisition into the past of the accused. At the time when the learned Deputy Magistrate passed his order, no previous conviction had been proved against Partab Narain. I do not think I ought to interfere in revision merely because a conviction of this type is discovered afterwards,

4. The next point has some force. The law is no respecter of persons. Members of the District Board are liable for their criminal acts like other people. But the terms of Section 562(1)(a) are wide. Character and antecedents may be taken into account. The learned Deputy Commissioner had a discretion, and I am not prepared to use the revisional powers of this Court to upset his order.

5. I, therefore, do not accept the reference.