1. This is a recommendation by the learned Sessions Judge of Ghazipur that a certain order of acquittal passed by a Bench should be set aside and a retrial ordered. The facts are very simple. The complainant produced his witnesses before the Bench and while his witnesses were making their examination-in-chief a member of the Bench, B. Sheo Shankar Singh, was absent. This Magistrate was present during the rest of the trial and 16 took part in the decision along with we other Magistrates who had been present during the whole trial. Of the two Magistrates present during the whole trial one was for acquittal and one was for conviction. B. Sheo Shankar Singh was for acquittal, and therefore the accused was acquitted on the decision of B. Sheo Shanker Singh and B. Tirloki Nath Singh, learned Counsel, first of all relied on the ruling reported in Emperor v. Mathura  41 All. 116, in which it was held that the provisions of Section 350, Criminal P.C., would apply to a somewhat similar case before a Bench. But subsequent to that ruling, by Act 18 of 1923, an additional Section 350-A was added to the Criminal P.C., specially dealing with this question of changes in the constitution of a Bench of Magistrates during the hearing of a case. That section therefore alters the law which was laid down in the ruling quoted arid the ruling is no longer any authority for the present law. Section 350-A clearly states that the order of a Bench of Magistrates would not be invalid on account of changes where the Bench was duly constituted, and the Magistrates constituting the same have been present on the Bench throughout the proceedings.' In the present case one of the Magistrates constituting the Bench which passed the order was not present throughout the proceedings. The order is therefore invalid according to the provisions laid down in Section 350-A. Learned Counsel next argued that this Court should not interfere in revision in a case of this nature, because the order was one of acquittal and because the Local Government might have appealed under Section 417, Criminal P.C., and did not appeal. It is obvious in the first place that this Court has power to interfere with an order of acquittal in revision otherwise the Code would not contain the provisions in Section 439(4) that in revision a High Court should not convert a finding of acquittal into one of convictions. The question is one of discretion as to whether in any particular case the High Court should or should not order a retrial. In Pahalwan Singh v. Sahib Singh A.I.R. 1921 All. 76 at p. 383 (of 19 A.L.J.) Stuart, J., laid down: 'The acquittal is a good order of acquittal in so far that it contains no inherent defects', and therefore in that particular case he would not interfere. The present case however is very different because there are inherent defects in the order of acquittal, and under Section 350-A, it is an invalid order. In 'that particular case on p. 384 it was stated:
Whether the decision was right or wrong, it is idle to suggest that there has been a miscarriage of justice.
2. The present case however seems to be rather different, as the complainant has not had a fair hearing and one member of the Court which decided the case did not hear the statements of the witnesses for the complainant in examination-in-chief. Learned Counsel went into details of the case and pointed out that it was a case where the complainant stated that he has sowed a certain crop as a tenant and the accused as zamindars had uprooted that crop by force and taken it away. The two Magistrates who acquitted the accused considered that it was not satisfactorily proved that the complainant sowed the crop or that the accused uprooted it. If the complainant succeeded in proving his case the complainant would probably have received compensation from the accused and therefore the matter would be one of importance to him. Under these circumstances 1 consider that this order of acquittal should be set aside, and I accordingly set it aside and direct that the case be retried according to law.