ORDER 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 A. L. J. 846 : (A. I. R. (7) 1920 ALL. 232 : 21 Cr. L. J. 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 500, Penal Code, and the trial Court had convicted the accused person. The appellate Court reversed the conviction without going into the merit 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 A. L. J. 589 : (A. I. R. (8) 1921 ALL. 266: 22 Cr. L. J. 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.
4. In a later case--Bala Pd. v. Muzammil Husain, 1934 A. L. J. 541 : (A. I. R. (21) 1934 ALL. 190 : 35 Cr. L. J. 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.
5. It would thus appear that the power to interfere in revision with an order of acquittal is to be exercised only in exceptional cases where it appears that the Judge has made an obvious mistake which has resulted in a failure of justice. One may think of other instances where the High Court may interfere with an order of acquittal which has in its opinion resulted in a failure of justice. For instance where the Judge has tried the case without jurisdiction or where the trial has been irregular in that he has not allowed the prosecution to produce material evidence or to address arguments before judgment, was delivered. But the High Court will not interfere when the Judge has tried the case in a regular way and passed an order of acquittal upon a consideration of all the material evidence on the record, on the ground that the conclusions arrived at by him are not correct. Such findings of facts are not interfered with in revision even in the case of a conviction; much less ought they to be interfered with in the case of an acquittal.
6. In the present case the opposite party was tried under Section 406, Penal Code, for having misappropriated a quantity of gold and silver which had been given to him by the applicant for preparing ornaments. There were only two witnesses including the applicant on behalf of the prosecution who stated that the opposite party had refused to return back the gold and the silver that had been given to him. The learned Judge did not consider their evidence as satisfactory. The opposite party gave evidence to show that he had no intention of misappropriating the gold and the silver that he had returned some of the gold and the silver in the shape of ornaments and that he was retaining the rest of the gold and the silver with him because of his claim for the payment of his wages and other dues from the applicant. The Judge considered this evidence and thought that it was not possible to say that the statement of the opposite party was not true and was accordingly not satisfied that the opposite party was guilty of a criminal offence. He also considered the fact that there had been a delay of ten months in filing the complaint. It is possible that on an examination of the evidence and the circumstances of the case one may come to a different conclusion and hold that the opposite party had been rightly convicted by the trial Court. But it cannot be said that the learned Assistant Sessions Judge who heard the appeal had not considered all the material evidence on the record. He had in fact considered the entire evidence and the circumstances of the case and arrived at the conclusion that the opposite party was not guilty and, having regard to the view that has been consistently taken by this Court, I am of opinion that this is, by no means, a fit case in which this Court should exercise its power of revision and interfere with the order of acquittal passed by the Court below.
7. The application is accordingly rejected.