1. This is a reference by the District Magistrate of Bareilly in which he suggests that the High Court should order a retrial of the accused. The reference has been sent by the District Magistrate through the learned Sessions Judge who agrees with the recommendation of the District Magistrate. The facts are that the accused who was the Karinda of Rai Bahadur Lala Sheo Prasad was prosecuted under Section 408, I.P.C. The charge against him was that he was entrusted with certain sums of money which he embezzled. The learned Magistrate who tried the accused acquitted him, but in the course of his judgment used observations which would go to show that he was not satisfied with the accused's innocence and that the circumstantial evidence against the accused was very strong but there was not sufficient judicial certainty of the accused's guilt to convict him. The learned District Magistrate has taken exception to several passages in the judgment of the trial Court and has emphasised the fact that the learned Magistrate has acquitted the accused on wrong judicial principles after having come to the conclusion that some of the charges against him were proved.
2. It is contended before me on behalf of the accused that the practice of District Magistrate to make a reference to the High Court in cases of acquittals has been deprecated by other High Courts as well as by this Court and has seldom been countenanced. Several authorities were cited before me in which this Court has refused to interfere upon a reference made by the District Magistrate, even if it was supported by the Sessions Judge, on the ground that it is open to the District Magistrate to move the local Government to file an appeal against an acquittal. This is very sound and I myself would not have interfered in the matter and would have refused to accept the reference if it had not been for the fact that the judgment of the trial Magistrate does not inspire me with confidence and the main reasons for this lack of confidence is the phraseology used by the learned trial Magistrate. It was also submitted that some High Courts in India have actually warned District Magistrates not to refer cases of acquittal to the High Court on pure questions of fact. I am in complete agreement with the views expressed by those learned Judges and I myself would have adopted^ the same procedure if the learned District Magistrate had referred the matter on a pure question of fact in the cases of acquittal. But as I said before in the present case the situation is slightly different. That the High Court has the power to interfere against an acquittal even on the application of a private person admits of no doubt and the case of Nand Ram v. Khazan A.I.R. 1921 All. 266 affords an instance of the same. Such a power obviously exists also when a District Magistrate sends a recommendation through the learned Sessions Judge, but in every case the power has to be exercised sparingly and with great caution.
3. In this particular case the judgment of the learned trial Magistrate is full of surmises and special pleadings. Reading it one is left in the dark as to whether his mind worked for a conviction or for an acquittal. The defence is that the accused was more a victim of circumstances having been duped by others than at fault himself, and learned Counsel on behalf of the accused tried to show that the defence was established. It is difficult to find out if the learned trial Magistrate was satisfied with the defence. At places he seems to be thoroughly dissatisfied with the defence; at others he is of the opinion that there is undoubtedly a possibility to that effect. The trial Courts are expected to record findings with definiteness and precision and not to indulge in airy generalities. With some reluctance, therefore, I accept the recommendation of the learned District Magistrate supported when it is by that of the learned Sessions Judge and order that the accused be tried by some Magistrate other than Mr. Haig. This Magistrate will start with a clean slate unbiased by any expression of opinion either by Mr. Haig or by the District Magistrate. He will convict the accused only if the prosecution evidence is sufficient to convict but he will give the benefit of doubt to the accused if the prosecution evidence is not sufficient. He will pay due regard to the defence of the accused and give a judicial decision on the same. Let it be understood that I have an absolutely open mind as regards the case and I hope the learned Magistrate will have the same open mind. Let the record be returned.