1. This is an application in revision from an order in revision of the District Magistrate of Bijnor. A complainant brought a charge under Section 406, I.P.C., against the applicant. The matter came before a Special Magistrate and he discharged the applicant. The complainant went in revision to the District Magistrate who purporting to act under Section 436, Criminal P.C., ordered a retrial. The applicant comes in revision to the High Court against the order of the District Magistrate.
2. Mr. Khawja, on behalf of the complainant, raises a preliminary objection to the case being entertained by the High Court. He contends that the applicant should not be heard by the High Court, until he has first made an application in revision to the Sessions Judge, and he prays in aid the authority of Sharif Ahmad v. Qabul Singh A.I.R. 1921 All. 30. In that case a Bench of this Court decided that:
as far as the practice of this Court is concerned, an application to the lower Court should be considered an essential step in the procedure, and that should be so whether the District Magistrate or Sessions Judge has power to grant the relief or not. In future, therefore, failure on the part of the applicant to submit his application to the lower Court will operate as a bar to the application being entertained by this Court.
3. It is contended that the applicant in this case should have first of all filed an application in revision in the Court of the Sessions Judge as a preliminary step to an application to the High Court in accordance with the ruling quoted above. It is contended that the District Magistrate's Court is an inferior Court to the sessions Court within the meaning of this ruling, and it is contended that this is made clear specially in matters of revision by the explanation following Section 435(1), Criminal P.C., which enacts that:
all Magistrates, whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 437.
4. I am of opinion that this preliminary point is misconceived and has no force. It is to be noted that the case of Sharif Ahmad v. Qabul Singh A.I.R. 1921 All. 30 was dealing with an application in revision from an order convicting the applicant and sentencing him to a fine of Rs. 10. In that case the conviction was by a Magistrate and no application had been made in the matter in revision to either the District Magistrate or the Sessions Judge. In the matter before me an application in revision has been made to the District Magistrate by the complainant and it is clear, in my view, that Sub-section (4), Section 435, therefore, applies. The sub-section enacts that:
if an application under this section has been made either to the Sessions Judge or District Magistrate, no further application shall be entertained by either of them.
5. It is contended by the complainant that this sub-section should be construed so as to mean:
an application under this section has been made to either Court by the applicant to the High Court,
and that the sub-section would not apply where the application to the lower Court had been made by the opposite party in the High Court. If effect were given to this contention of the complainant, it would mean that the applicant in revision to the High Court, having already applied to the District Magistrate in revision on the same point, would have then to go to the Sessions Court as a mere formality, because the Sessions Judge would have no power to pass an effective order; he would merely be a sort of conduit pipe through which the applicant would have to travel before he reached the High Court. This would mean additional expense and delay to the parties for no effective purpose. If the Bench of this Court in Sharif Ahmad v. Qabul Singh A.I.R. 1921 All. 30, had made a rule of practice enforcing such a step upon applicants in revision, I would, of course, be bound by it. But, as I have pointed out, the case of Sharif Ahmad v. Qabul Singh A.I.R. 1921 All. 30, has no real application to the present case. The construction of Sub-section (4) clearly must be that where either the Sessions Judge or District Magistrate has had an application in revision in the same matter before them, moved by either party, the other local District Court would have no jurisdiction to hear a further application in the same matter. This reading of the subsection accords, in my view, with common sense. I am confirmed in my view on this point of law by decisions of other High Courts in India: see the case of Kalimuthu v. Emperor  26 Mad. 477. In that case an application in revision was made to the Sessions Judge, which was dismissed. The District Magistrate then took up the case suo motu and made an order contrary to the decision of the Sessions Judge. It was held in that case under Clause (4) of Section 435 that the District Magistrate's order was invalid. In Emperor v. Waryam  110 P.R. 1912 Cr. the Punjab Chief Court held that Section 435(4), Criminal P.C., applied to all cases in which either a District Magistrate or a Sessions Judge had taken action, or had refused to take action, under Sections 435, 436, 437 and 438 of the Code and that the words 'further application' in Section 435 mean another application in respect of the order in question of the inferior criminal Court.
6. It is clear that the provisions of Section 435. (4) were enacted for the purpose of avoiding a conflict of opinion between two local Courts of co-ordinate jurisdiction.
7. The preliminary objection having been disposed of, it is contended by the applicant that the order of the District Magistrate in this case, ordering a retrial ought to be set aside.
8. In the first place, the order of the District Magistrate is clearly illegal and improper, in that a District Magistrate has no jurisdiction to order a retrial of a case. He can order, if he so wishes, on proper grounds, under Section 436, Criminal P.C., a further inquiry into the complaint, but it is reserved to the High Court in Section 439, Criminal P.C., to use any of the powers conferred on a Court of appeal, which would include the right of ordering a retrial. The order of the District Magistrate is, therefore, bad. It is competent for this Court to amend the order of the District Magistrate to one competent to him under Section 436. But as any order under Section 436 would be clearly improper in this case, it is unnecessary to amend it.
9. The case for the complainant was that she had paid Rs. 700 to the accused for the purpose of his discharging a debt due by her deceased husband to a certain moneylender one Piare Lal. She alleged in her complaint that the accused had never paid the money to the money lender, but had appropriated it to his own use and, therefore, had committed a criminal breach of trust. The complainant called evidence before the Magistrate. She proved herself that she had paid the money to the accused and that is accepted by both Courts as being a fact. She also called Piare Lal, the moneylender and the moneylender gave evidence that on 23rd October 1928, Mohammad Husain, the accused applicant, paid him Rs. 700, and that he (Piare Lal) had struck the debt for this amount out of his bahikhate and returned the bond to the applicant. The prosecution closed its case. On the evidence before him the Magistrate came to the conclusion, which was entirely proper, that the prosecution had failed to make out any case under any section of the I.P.C. It is clear, of course, that no criminal breach of trust had been proved. The prosecution had proved the receipt of the money by Mohammad Husain and the payment of it by him to the moneylender, as he was instructed to do. The applicant was, therefore, entitled, if he felt so inclined, to submit that no case had been made out and that it was unnecessary for him to make a statement or enter upon his defence. The District Magistrate, however, in an application in revision has delivered himself of a judgment which it is almost impossible to understand.
10. He says,
it is clear that the money had been deposited by the accused with Piare Lal, but it was deposited not on behalf of the plaintiff but on behalf of the accused himself.
11. As there was no evidence of this before the learned Magistrate, it is difficult to know how he so found, but even if the facts be as stated, it could not make the accused guilty of a criminal offence. It is perfectly clear that the applicant was entitled, on the evidence of the prosecution itself, to an order of discharge.
12. It has been laid down in this Court on many an occasion that an order of discharge should only be set aside very sparingly and only when it can be said either to be perverse or prima facie incorrect and there is a suggestion that any further evidence might be forthcoming. In this case it is impossible to say that the order was perverse or incorrect, and it has never been suggested that the prosecution did not call all the evidence it could on this matter, or that it would be possible on any further enquiry to call any further evidence. Indeed, on the evidence of the money lender himself, it would be impossible to call any other evidence which could alter the nature of the finding of the Court. On that evidence alone the accused was entitled to be discharged. I accept the application, discharge the order of the District Magistrate and restore the order of the trial Court.