DESAI, J. - (1.) THIS is rather an unfortunate case because the learned Sessions Judge who decided the appeal has done so on mere surmises and thereby caused injustice to the applicant. The applicant paid Rs. 400 to the opposite party Jumman in order to buy from him a sewing machine at Calcutta. But the opposite party neither bought the machine nor returned the money to the applicant. The applicant thereupon prosecuted him under Section 406 and succeeded in the trial Court but not in the Sessions Court. The defence of the opposite party in both the Courts was that the applicant had paid the money not to him but to one Abdul Majid and he even led evidence to prove this. But it has been found by both the Courts that the money was paid to the opposite party. On this finding he should have been convicted because he has not bought the machine and has misappropriated the money. His denial of the receipt of the money is nothing but misappropriation. The learned Sessions Judge, however, made out a defence which was never pleaded by the opposite party, and is even inconsistent with his case. He thought (without any evidence) that the opposite party paid the money to Abdul Majid in order to buy the machine and that if Abdul Majid did not buy the machine and does not return the money to the opposite party, the latter cannot be held guilty of criminal misappropriation. Had the opposite party admitted to have received the money and pleaded that he acted bona fide in paying it to Abdul Majid, he would have been entitled to be acquitted on that ground. But he himself did not admit that he had received the money and paid it to Abdul Majid and the learned Sessions Judge was not at all justified in presuming without any evidence that this was the case. It was not for him to make out a case which was not supported by any evidence on the record. He should have decided the matter on the basis of the material on record and not on mere surmises. What the opposite party told the applicant on his demand of the money is certainly no evidence of its truth. The acquittal of the opposite party by him is clearly unjust.
(2.) THOUGH a prayer is made in this application that I should get aside the order of acquittal and convict the opposite party, it is conceded, and it is also the law, that I cannot alter the finding of acquittal into one of conviction and that the most that I can do is to order retrial. I have to see whether a retrial would be justified.
(3.) DIFFERENT Courts have expressed themselves differently about the circumstances in which a retrial can be ordered on revision against acquittal. The power to interfere with acquittal on revision has never been disputed; the very provision that on revision a finding of acquittal cannot be converted into one of conviction shows that a High Court can interfere with acquittal on revision. Since it cannot convert a finding of acquittal into one of conviction, it can only order retrial. The problem is to know in what circumstances a High Court would be justified in ordering a retrial. I should make it clear here that when the acquittal by the trial Court itself, the retrial has to be by it; there is no appellate Court to be considered. When, however, the acquittal is by an appellate Court, there are two Courts which can be ordered to retry the case - the trial Court which can be ordered to retry the case, and the appellate Court which can be ordered to retry or rehear the appeal. In such a case the retrial can be only by the appellate Court because it is that Court's judgment of acquittal that is set aside. The trial Court having convicted, cannot be ordered to retry the case. There will be no sense in ordering it to retry the case when it would have nothing to do but to confirm its previous judgment. This view is in conformity with the view taken by a Full Bench of this Court in Queen Empress v. Balwant, 9 All 134 : (1886 AWN 322 FB) and followed in Ma Thaung v. Nandiya, AIR 1938 Rang. 193 : (39 Cr LJ 623). In the present case it was the Sessions Judge who set aside the conviction of the opposite party and, therefore, if any retrial is to be ordered it would be of the appeal heard by him. In In re Hardeo, 1 All 130, Pearson, J., laid down, at page 141, that retrial can be ordered where the acquittal is "by reason of some material error in a judicial proceeding"; Turner, J., laid down at p. 142, that it can be ordered where the acquittal is due to a material error, that is, "such an error as makes the proceeding bad in law"; and Spankie, J., laid down at p. 144 that : "if there is a revision at all, it must be on some purely material error (in law) in the proceedings". In Pahalwan Singh v. Sahib Singh, 19 ALJ 382 : (AIR 1921 All 76 : 22 Cr LJ 597), Stuart, J., stated that the power to interfere with acquittal on revision should be used very sparingly. Faujdar Thakur v. Kasi Chaudhri, 42 Cal 612 : (AIR 1915 Cal 388 : 16 Cr LJ 122), is a well -known case laying down that a High Court "should ordinarily exercise this jurisdiction sparingly and only where it is urgently demanded in the interests of public justice." In re Netesa Padayachi 16 Cr LJ 558 : (AIR 1916 Mad 1106), Sankaralinga Mudaliar v. Narain Mudaliar, 45 Mad 913 : (AIR 1922 Mad 502 : 23 Cr LJ 583 (FB) and In re Faredoon Gawasji, 41 Bom 560 : (AIR 1917 Bom 226 : 18 Cr LJ 668) have followed Faujdar Thakur v. Kasi Chaudhri, 42 Cal 612 : (AIR 1915 Cal 388 : 16 Cr LJ 122). In Krishna Namdeo v. Sulaiman, 49 Cr LJ 394 : (AIR 1948 Nag 276) it was stated that there should be no interference with acquittal in the absence of exceptional circumstances that would justify a second trial. Bind Basni Parsad, J., in Mohammad Sattar v. Bihari Lal, 49 Cr LJ 457 : (AIR 1948 All 339) was of the opinion that a High Court should interfere only when the case is of a serious nature. He was dealing with an offence punishable with imprisonment extending up to two years only and did not consider the case serious enough for interference in revision. In the case of Pahalwan Singh, (19 ALJ 382 : AIR 1921 All 76 : 22 Cri LJ 597) Stuart, J., observed that "except in the most serious cases and in the event of grave miscarriage of justice no High Court should interfere in revision." He was also dealing with a case which was trivial to a degree. "Extreme cases" are the only cases in which, according to In re Kisni Baxi Ram, 38 Cr LJ 719 : (AIR 1937 Nag 103), there can be revision against acquittal on the consideration of evidence at the instance of a complainant. In Kamikha Pershad v. Emperor, 28 Cr LJ 788 : (AIR 1927 Oudh 345), it was stated that a High Court would not move in the absence of "some glaring defect either in the procedure or in the view of the evidence taken by the Court below" because ordering a retrial is "an extreme step and one which should only be taken where there has been a flagrant miscarriage of justice" (p. 790). The rule laid down by Stuart A.J.C. in Tilak Ram v. Baggha Singh, 16 Cr LJ 352 : (AIR 1915 Oudh 203), is that the revisional powers should not ordinarily be exercised because an appeal can always be instituted by Government against the acquittal. Dalip Singh, J., in delivering judgment of the Full Bench in Partap Singh v. Harnam Singh, AIR 1942 Lah 70 : (43 Cr LJ 453 FB) stated that : "It is only when the record is incomplete or there is a flaw in jurisdiction or where the finding is manifestly wrong or perverse that the High Court will interfere." In Rama Murti v. Jai Indra Bahadur Singh, 34 Cr LJ 661 : (AIR 1933 Oudh 257), Raza, J., explained on what grounds of law and fact a High Court could interfere with acquittal; on a ground of law, it would not interfere with an error or omission or irregularity unless the same has caused a failure of justice, and on a ground of fact it would not interfere save in exceptional cases as where the judgment is perverse. In Abdul Manir v. Kadir Khan, 38 Cr LJ 470 : (AIR 1937 Patna 110), Rowland, J., was of the opinion that interference with acquittal is reserved for exceptional cases in which there is "a failure of justice due to some error in a matter of a principle". The existence of a remedy in a civil Court was held in the Corporation of Calcutta v. Bengal Dooars Railway Co. Ltd., AIR 1940 Cal 531 : (42 Cr LJ 100), to be a ground for refusal to interfere in revision. Similarly the fact that the Government can file an appeal against acquittal under Section 417, Criminal Procedure Code, was held to be a ground for refusal to interfere in revision in Tilak Ram v. Baggha Singh, (16 Cr LJ 352 : AIR 1915 Oudh 203) (supra), P.D. Shamdasani v. Central Bank of India, Ltd., (No. 1), AIR 1944 Bom 107 : (45 Cr LJ 612 FB) and the case of Faujdar Thakur, (42 Cal 612 : AIR 1915 Cal 388 : 16 Cr LJ 122). Sometimes, however, a High Court has leant towards interference with acquittal on revision on the ground that the matter not being of public interest the Provincial Government would not be interested in filing an appeal. Thus, in cases of defamation, etc., some High Courts have shown greater inclination towards interference than in other cases. If a Magistrate for reasons outside the merits of the dispute really declines to decide the controversy and deals with matters which really do not decide the complaint before him, it is a case of failure to exercise jurisdiction justifying interference; see Bhagwan Singh v. Arjun Dutt, 18 ALJ 846 : (AIR 1920 All 232 : 21 Cr LJ 564). If he misquotes the evidence or gives no ground whatsoever for rejecting evidence that is prima facie credible and reasonable, that is said to be a ground for revision; see Nand Ram v. Khazan, 19 ALJ 589 : (AIR 1921 All 266 : 22 Cr LJ 337). A retrial was ordered in Satish Chandra v. Chinta Haran, AIR 1938 Cal 613 : (39 Cr LJ 988), on the ground that the lower appellate Court did not direct its mind to the evidence and circumstances on the record in a manner consonant with a proper exercise of appellate jurisdiction.;