Anantanarayana Ayyar, J.
1. This is a petition to revise the order of the Principal Judicial Second Glass Magistrate, Eluru in M.P. No. 33 of 1961 in C.C. No. 95 of 1961 on his file.
2. The relevant facts are briefly these: The revision petitioner originally filed a complaint against the respondents herein in C.C. No. 105 of 1959 on the file of the Principal J.S.C.M. Eluru. The complainant alleged that on 27.12.1958, the respondents went into his house and inflicted injuries on his person in consequence of his refusal to advance some loan to the wife of one of the respondents. The complainant examined five witnesses on his behalf to substantiate the offence. The respondents denied the commission of the offence. The Magistrate after a consideration of the evidence of four witnesses, found that the prosecution had failed to prove the guilt of the accused beyond reasonable doubt and hence acquitted all the four accused.
The complainant filed C.A. 502 of 1959 in this Court against the judgment of acquittal. My learned brother, Sharfuddin Ahmed, J. disposed of that criminal appeal by his judgment dated 25.10.1960 setting aside the order of acquittal and directing further inquiry into the matter. When the matter went before the Principal J.S.C.M. Eluru, the latter summoned all the prosecution witnesses and took steps to hold a retrial. Thereupon the complainant filed an objection petition (M. P. No. 33 of 1961) contending that this Court ordered only a further enquiry and not a retrial and that what the learned Magistrate had to do was to reconsider the evidence and pass orders on the material available on record. Then, tile learned Magistrate passed an order as follows:
As the order of the High Court did nit specifically state as to from what stage the case has to be inquired, it is better to retry the case in the interests of justice. Hence, the P.Ws. will be examined again.
Thereupon, the complainant filed this revision petition against that order of the Magistrate.
3. Section 423(1), Cri.P.C., runs as follows.
The Appellate Court...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 tried 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....
In Section 423(1)(a) and (b), there is provision for ordering re-trial but in Section 423(1)(a) there is an additional provision for ordering further inquiry as distinct and different from ordering re-trial. What was ordered by this Court in its judgment dated, 25.11.1960 was further inquiry and not re-trial.
4. In Queen Empress v. Balasinnatambi ILR 14 Mad 334(FB), the following question was referred to the Full Bench.
Whether under Section 437, Cri.P.C. it is competent to a District Magistrate, Sessions Court or High Court or any of them to direct further inquiry or a retrial to be held where additional evidence is not forthcoming
The Madras High Court observed thus: (at p. 341).
I agree that the term 'further inquiry' means an inquiry in addition to that which has already been held, but I do not understand why it should necessarily involve the taking of additional evidence; for an enquiry means, more than the taking of evidence. It means also consideration of the evidence taken....
The above decision has been followed by the Madras High Court in In Re, Harichandra Reddy AIR 1938 Mad 742 wherein the question that arose for determination was as to whether a Sub-Magistrate acted rightly in conformity with the Sessions Judge's order passed under Section 436, Cri.P.C. ordering further inquiry, when the Sub-Magistrate considered the evidence already on record and framed a charge. Therein, it was observed as follows:.It is now argued that the Magistrate was bound to begin the inquiry afresh. I find nothing in any Section of the Criminal Procedure Code which justifies this argument. When order of discharge is set aside and further inquiry ordered, the inquiry re-commences where it was left off at the time when the improper order of discharge was passed. Further inquiry, as pointed out in ILR 14 Mad 334(FB), does not merely mean an examination of witnesses but a further consideration of the evidence; and the Magistrate was therefore justified upon perusing the evidence in framing the charge.
It was also held in that case that re-summoning of the witnesses does not tantamount to re-commencing the inquiry, and that even when the Magistrate contemplated re-commencing the inquiry when he recommended the witnesses, he was not precluded from changing his mind before re-commencing the inquiry.
5. In Udit Narayan v. Emperor AIR 1938 Pat 369 it was held that the order by a superior Court (in that case Sessions Judge in revision) to an inferior Court to hold a further inquiry into the complaint which had been dismissed under Section 203, Cri.P.C. had acquired what may be called a technical meaning and that it simply meant re-consideration.
6. In Shyamlal v. State : AIR1954Pat441 also, it wag held that the expression 'further inquiry' under Section 437, Cri.P.C, had come to have a technical meaning and that it simply meant reconsideration of the matter.
7. In Hari Dass Sanyal v. Saritulla, ILR 15 Cal 608, a Full Bench of the Calcutta High Court held that a Sessions Judge had jurisdiction under Section 437, Cri.P.C. to order further inquiry or a rehearing upon the same materials which were before the Subordinate Magistrate i.e. when no further evidence was forthcoming.
8. 'Further inquiry' as used in Section 423(1)(a), Cri.P.C. does not mean fresh inquiry but is distinct and different from it. In this sense, the meaning of the term is substantially the same as when used in Sections 436 and 437, Cri.P.C. In further inquiry, proceedings have to be held so as to form a continuation of the old inquiry. It can be held by mere re-consideration of the evidence already on record and passing an order on the material so available. It does not necessarily mean that additional evidence should not or cannot be taken. It is open to the trial court to exercise its power and discretion to record any further evidence which it considers necessary and proper. But, it cannot treat the entire evidence, already on record as effaced and as having no effect. 'Further inquiry', does not mean re-trial which is a distinct and separate remedy cleaily provide in the same Section 423(1)(a), Cri.P.C.
9. In this case, it is beyond doubt or dispute that evidence had been recorded in full by the J.S.C. M., who passed the original judgment of acquittal. That evidence included the testimony of five P.Ws. The judgment had been set aside. So what was left of the old proceedings consisted of the entire evidence, the trial having been concluded. But the learned Magistrate stated that it was better to re-try the case in the interests of justice. The reason given by the learned Magistrate for holding that a re-trial was better was that the order of this Court did not specifically state as to from what stage the case had to be inquired. There was no need for this Court to specifically state any such thing as stated by the Magistrate. For, the very order to hold a further inquiry into the matter is itself a clear indication as to what stage the Magistrate had to begin namely, to continue the proceedings from where they had been left taking into account the fact that the judgment had been set aside. It may be that in the view of the Magistrate a retrial was better than a further inquiry. But, in this case, he had no discretion in the matter. When this Court ordered further inquiry, he has to hold only further inquiry and not retrial, even if he considered that a re-trial was better than further inquiry. He may, if he thinks fit, take additional evidence. Consequently, I find that his order deciding to hold re-trial is not tenable.
10. In the result, I set aside the order of the trial Court, allow this revision and direct the learned Magistrate to hold a 'further inquiry' into the matter as ordered by this Court and in the light of the observations made above.