HARISH CHANDRA, J. - (1.) THIS application in revision is directed against an order of the learned Assistant Sessions Judge of Agra, dated 3rd May 1949, acquitting the opposite party Madanlal of an offence under Section 406 Penal Code, of which he had been convicted by the Tahsildar Magistrate of Agra on 4th November 1948. A revision against an order of acquittal can be entertained in exceptional cases only and the powers of the High Court in the case of an acquittal are very limited except where an appeal has been filed on behalf of the Provincial Government. For the Code of Criminal Procedure provides that the High Court cannot, in exercise of its power of revision, convert an order of acquittal into one of conviction. The power of the High Court to direct a retrial in a case in which an accused person has been wrongly acquitted has, however, been recognised and a number of cases has been cited before me in which such power was exercised by this Court.
(2.) IN the case of Bhagwan Singh v. Arjun Datt, 18 ALJ 846 : (AIR 1920 All 232 : 21 Cr LJ 564), Walsh, J., was conscious of the fact that it was contrary to the practice of the High Court to interfere in revision with a judgment of acquittal. He, however, says : ", . . where it is plain that the learned Judge for reasons outside the merits of the dispute has really declined to decide the controversy and has dealt with matters which really do not decide the complaint before him, it seems to me that it is like a case in which if it had been a civil enquiry, he would have failed to exercise his jurisdiction and, therefore, a fortiori is a case in which this Court in a criminal matter is bound to interfere." The complaint was under Section 600, Penal Code, and the trial Court had convicted the accused person. The appellate Court reversed the conviction without going into the merits of the case on the ground that "the case ought to be dismissed because he regards it as contemptible and not worthy of serious treatment." The order of acquittal was accordingly set aside and the Sessions Judge was directed to hear the appeal afresh according to law.
(3.) AFTER this there was another case of Nand Ram v. Khazan, 19 ALJ 589 : (AIR 1921 All 266 : 22 Cr LJ 337), which was heard by Mears, C.J. He points out that, although there was no doubt that the High Court had the power to order a retrial in such cases it was a jurisdiction which should be exercised only in exceptional cases and with caution. He says : "It should only be done in cases where the alleged offence is of a serious character. If, however, a Judge comes to the opinion that there has been a miscarriage of justice where for instance the lower Court has misquoted the evidence or where having evidence before it which prima facie is reasonable and credible, the Judge of that Court gives no grounds whatever for rejecting it. In instances such as that there may well arise an inference that the Judge has not acted with that propriety and care which is required in the decision of every case, be it civil or be it criminal. In such a case it would appear to be proper, after due examination of the facts to make an order for retrial." In the case before him it appeared that the Sessions Judge had given no reason whatsoever for discrediting certain material witnesses. There was nothing in their cross -examinations to impugn their veracity. The High Court thought that the case was one of those rare and exceptional cases where a new trial should be ordered. The order of acquittal was accordingly set aside and a retrial ordered. In a later case - Bala Pd. v. Muzammil Husain, 1934 ALJ 541 : (AIR 1934 All 190 : 35 Cr LJ 998) - Niamatullah, J., observed that although the High Court did not ordinarily interfere with an order of acquittal in revision it did interfere with a case of an exceptional nature. In the case before him he found that the Magistrate had proceeded on the supposition that a certain Municipal bye -law did not exist although in fact it existed. He had also made the mistake of holding that a hut was not a building as defined in Section 2 (2), U. P. Municipalities Act, 1912. He accordingly set aside the order of acquittal and directed a re trial.;