1. This is a reference by the learned Additional Sessions Judge of Saharanpur under the following circumstances. Two persons Debi Ram and Bahrain were accused of the theft of a drum under Section 380 of the Indian Penal Code. The trying Magistrate acquitted them and ordered the drum to be restored to them. The complainants applied in revision to the District Magistrate urging that the accused had been wrongly acquitted and that they should be convicted and punished. The learned District Magistrate declined to entertain the revision, but, holding that the order under Section 517 of the Code of Criminal Procedure was appealable and considering that the weight of evidence was in favour of the drum being the property of the complainants, he set aside the order of the trial court and directed the delivery of the drum to the complainants. The learned Additional Sessions Judge has referred the case to this Court, holding that the District Magistrate had no jurisdiction. This is the second case in which' this learned Judge has made a reference to this Court without giving the Magistrate an opportunity of submitting his explanation as required by the rules. It is, however, at this stage unnecessary to delay the case by sending it back. I agree with the learned Additional Sessions Judge. An order under Section 517 can be set aside by a court of appeal, confirmation or revision. The District Magistrate was, however, in this case not a court of appeal because no appeal lay against the order of acquittal. This view has been taken under similar circumstances by the Bombay High Court in the case of In re Khema Rukhad (1918) I.L.R. 42 Bom. 664. It was held in that case that where the accused had been acquitted, the Sessions Judge had no jurisdiction to set aside the order of the trying Magistrate restoring the cattle to the accused and to order their delivery to the complainant. The District Magistrate was also not a court of confirmation, reference or revision, the only court which could pass orders on a reference or revision being the High Court.
2. I, therefore, set aside the order of the court below and restore that of the Cantonment Magistrate.