Krishna Rao, J.
1. This is a petition to revise the judgment of the Sessions Judge, Visakhapatnam allowing an appeal filed by the petitioner against his conviction and sentence for an offence punishable under Section 406, Indian Penal Code, but ordering at the same time a further enquiry by a Magistrate into the case,
2. The case was the result of a private complaint made on 1st, March, 1955, by P.W. 1 Appamma to the Sub-Divisional Magistrate, Srikakulam. Her story so far as it is now material, is that she lent the petitioner four of her gold jewels weighing about 20 tolas for being worn by his daughter during a function and that when she asked for the return of the jewels a few days later, the petitioner flatly denied having taken them. P.Ws. 2 and 3 who reside in the village spoke to have been fortuitously present at the time of the entrustment of the jewels and to having accompanied P.W. 1 when she unsuccessfully demanded their return. The petitioner's plea wag that a false case was foisted against him on account of enmity. He examined six witnesses in defence. Apart from the oral evidence of P.W. 1, the complainant, and of P.Ws. 2 and 3 who. as already indicated, professed to have been conveniently present by chance at the time of entrustment of the jewels, there was nothing to support the complaint. Even in this oral evidence, there were numerous discrepancies. There were varying versions as to the date of the entrustment, for instance, it was stated to be 8th February, 1955, in the complaint, a Wednesday corresponding to 22nd February, 1955. in the sworn statement, a Friday corresponding to about 23rd February, 1955, by P.W. 1 in the witness-box, a Friday in March, 1955, in P.W. 2's evidence and a Friday prior to Sankaranti in January, 1955, in P.W. 3's evidence. The discrepancies were important, because any delay in the complaint would naturally be expected to be accounted for. There were equally glaring discrepancies with regard to the date on which P.W. 1 was said to have demanded the return of the jewels. The trial Magistrate noticed these discrepancies, but brushed them aside by a special pleading that the complainant's story was natural, that P.Ws. 1 to 3 were illiterate witnesses wanting in time sense, that he was impressed by their demeanour and that the discrepancies were 'of truth and not of falsehood.' He therefore convicted the petitioner under Section 406, Indian Penal Code and sentenced him to pay a fine of Rs. 500, out of which Rs. 400 was awarded as compensation to P. W. 1. On appeal, the learned Sessions Judge noticed that the Magistrate had given strained explanations for the defects in the prosecution evidence and agreed with the criticism that the prosecution evidence was unsatisfactory and insufficient to sustain the conviction and sentence. He said
I find the materials are deficient, truncated and insufficient to come to a conclusion-I hold that the conviction is not justified on the materials on record.
But he felt that there was a substratum of truth in the complaint and that P.W. 1 was handicaped as there was no police investigation, by means of which the lacuna in the evidence such as the non-recovery of the jewels, the management and possession of P.W. 1's land throwing light on the motive, etc., could have been remedied. He observed that there was need for investigation under Section 202, Criminal Procedure Code, allowed the appeal and sent the matter for further enquiry to the District Magistrate, Visakhapatnam.
3. It is contended in revision that, as a matter of law, the Sessions Judge had no power to order a further inquiry into the case, that he could have ordered a retrial but that on the facts this is not a proper case for retrial. These contentions are well-founded. The powers of an appellate Court in disposing of appeals are set out in Section 423, Criminal Procedure Code, the material portion of which reads:
The Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal or may
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(b) in an appeal from a conviction (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such appellate court, or committed for trial or (2) alter the finding, maintaining the sentence, or, with or without altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without altering the finding, alter the nature of the sentence but subject to the provisions of Section 106, Sub-section (3), not so as to enhance the same;
(c) in an appeal from any other order, alter or reverse such order;
(d) make any amendment or any consequential or incidental order that may be just or proper.
The power to order further inquiry is given by Clause (a) in appeals from acquittals. But this power is omitted in Clause (b), which governs appeals from convictions. It cannot be said that the power to order retrial includes the power to direct a further enquiry. The word 'enquiry' is defined in Section 4(1)(k) as follows:
Inquiry' includes every inquiry other than a trial conducted under this Code by a Magistrate or Court.The definition puts it beyond doubt that an inquiry is something different from a trial, and that 'inquiry' stops when trial begins.
4. Sri Adavi Rama Rao for the complainant has urged that the powers in Clause (d) of Section 423 include the power to order a further inquiry. But I am unable to agree that an order for further inquiry can be regarded as a consequential or incidental order upon allowing an appeal from a conviction. Such a construction would fail to give effect to the omission in Clause (b) of the words 'direct that further inquiry be made' which are found in Clause (a) of the Section.
5. The learned Public Prosecutor contended that the lower Court's order may be construed as one for retrial or may be modified accordingly. But a retrial can be properly ordered only in cases where the guilt of the accused has been clearly established and there is merely a technical defect. Rathnavelu Mudaliar v. Emperor AIR 1930 Mad 183(A) and Machander v. State of Hyderabad : 1955CriLJ1644 . It cannot be used as machinery for supplying substantial lacuna in the evidence and for either strengthening the prosecution or improving the defence. In the instant case, as the learned Sessions Judge himself found that evidence was quite insufficient to sustain the conviction, the proper order was that the petitioner should be acquitted.
6. I have to notice in this connection that the learned Sessions Judge has entirely misunderstood the scope of Section 202, Criminal procedure Code. As the section itself indicate, it is to be availed of only before the issue of process compelling the appearance of the accused and for the purpose of ascertaining the truth or false-hood of the complaint. It would he be gross abuse of the section to invoke it after the process had not only been issued to the accused, but he has gone through the whole trial and for the purpose not of testing the truth of the complaint but for gathering evidence in support of the prosecution. There are other sections in the Code of Criminal Procedure such as 156 and 159 which empower Magistrates to direct an investigation and to collect evidence. The learned Sessions Judge's direction that there should be an investigation under Section 202, Criminal Procedure Code is obviously erroneous; and has to be set aside.
7. In the result, the revision petition is allowed and the petitioner's acquittal by the learned Sessions Judge will stand, while the order for further enquiry is set aside.