SATYENDRA NATH DUTTA Vs. RAM NARAIN

JUDGEMENT

(1.) The appellants Satyendra Nath Dutta and Subhash Mauzumdar were tried by the learned Civil and Sessions Judge, Lucknow, for offences in connection with the death of one Nanhey Lal and injuries to his son, Raj Kishore. Satyendra Nath Dutta was charged under Section 302 and Section 307 read with Section 34 while the other appellant was charged under Section 307 and Section 302 read with Section 34 of the Penal Code. The learned Sessions Judge acquitted the appellants upon which Ram Narain, a brother of the deceased Nanhey Lal, filed a revision application in the High Court of Allahabad under Section 439, Code of Criminal Procedure, challenging the order of acquittal. It is said that the State of U. P. wanted to file an appeal against the order of acquittal but it could not do so as the record of the case was missing. The High Court allowed the revision application, set aside the order of acquittal and directed that the appellants be re-tried by the Sessions Court. This appeal by special leave is directed against the judgment of the High Court ordering the re-trial.

(2.) Section 417 (1) of the Code of Criminal Procedure, 1898 provides that the State Government may direct the Public Prosecutor to present an appeal to the High Court from an order of acquittal passed by any Court other than the High Court. By sub-section (3) the High Court is empowered to grant special leave to the complainant to appeal from the order of acquittal if such an order is passed in a case instituted upon a complaint.

(3.) Section 439 (1) of the Code, which deals with the revisional powers of the High Court provides that in the exercise of revisional jurisdiction the High Court may exercise any of the powers conferred on a court of appeal. As the Court of appeal is entitled under S. 423 (1) (a) to reverse an order of acquittal or to direct a re-trial, the High Court in the exercise of its revisional powers would also be enticed to record a conviction by reversing the order of acquittal. But subsection (4) of S. 439 provides expressly that nothing contained in the section "shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction." This. provision has been judicially interpreted and it is necessary to refer to the decision of this Court bearing on the construction thereof.