1. By an order pronounced on May 7, 1965, we ordered the dismissal of thisappeal but reserved our reasons which we now proceed to give.
2. The five appellants were tried on a complaint by the respondent JanardanPrasad before the Honorary Magistrate, First Class, Jehanabad for offencesunder Sections 420, 468, 406, 465/471, Indian Penal Code. They were acquitted onAugust 31, 1962. The complainant obtained special leave of the High Court atPatna under s. 417(3) of the Code of Criminal Procedure and filed an appealagainst their acquittal. The High Court set aside the acquittal and remandedthe case to the District Magistrate of Gaya with a direction that the case beinquired into under Chapter XVIII of the Code from the stage of taking evidenceunder s. 208, with a view to their committal to the Court of Session. Theappellants now appeal by special leave against the judgment and order of theHigh Court. The facts of the prosecution case may now be stated briefly.
3. Janardhan Prasad and his brother Jangal Prasad were separate,! having,prior to the present occurrence, partitioned their lands by metes and bounds.Plots Nos. 1810 and 1811 in village Kalpa Kalan fell to the share of Jangal andplot No. 1699 in the same village fell to the share of Janardan. JangalPrasad's plots lie close to the dalan of Matukdhari and his brothers RameshwarSingh and Dhanukdhari Singh (the first three appellants) and they coveted them.Janardhan alleged that they forged a sale deed in respect of half the area ofthose two plots and presented the documents for registration. Janardhan wasaggrieved but on the intercession of Deoki Lal and Chhedi Lal (appellants 4 and5)the dispute was compromised and it was agreed that Janardhan would execute asale deed for plot No. 1699 and half of another plot No. 1491 while Matukdhariand his brother Dhanukdhari Singh agreed to sell in return O.10 acre in one oftheir plots (No. 1797) to him. The complainant executed two sale deeds inrespect of the two said plots and Dhanukdhari Singh executed a sale deed inrespect of plot No. 1797 as it was in his name. The latter sale deed was takenin favour of Janardhan's son. All documents were scribed by Deokilal with thehelp of Chhedi Lal and were presented for registration. The receipts obtainedfrom the Registration Office were left with Deokilal till the result of thefirst registration case (which was fixed for February 8, 1960) was known. WhenJanardhan asked for the receipts he was put off. He found later that the twodocuments had already been withdrawn by forging his signature. Matukdhari hadwithdrawn the deed executed by Janardhan and Dhanukdhari the sale deed executedby himself. The complainant was assured by Deokilal and Chhedilal that the deedexecuted in favour of his son would be returned by Rameshwar Singh with whom,it was said to be lying, but Rameshwar Singh refused to do so. The complaintwas, therefore, filed.
4. The Sub-Divisional Officer, Jehanabad took cognizance under Sections 468, 406 and 420, Indian Penal Code and sent the case to the Hony. Magistrate fordisposal. The Hony. Magistrate drew up charges against all the accused under s.420, Indian Penal Code. In addition, Chhedilal and Deokilal were charged unders. 468, Indian Penal Code and s. 406, Indian Penal Code respectively.Matukdhari was charged under Sections 465/471, Indian Penal Code. These chargescould be tried by the Honorary Magistrate. No charge under s. 467, Indian PenalCode was framed against any of the appellants. If it had been framed the casehad to be committed to the Court of Session. On March 29, 1962 the complainant,by a written application, asked that action under Chapter XVJJI of the Code betaken but the Magistrate declined to commit the accused. Another applicationdated June 28, 1962, for the same purpose was also rejected. The learnedMagistrate held that the evidence of entrustment of the receipts from theoffice of the Registrar was not satisfactory and Deokilal could not beconvicted under s. 406, Indian Penal Code. He further held, mainly on theground that no handwriting expert was examined, that it was not possible to saythat there was forgery of the signatures or that Matukdhari had used thereceipts knowing them to be forged. On these findings the appellants wereacquitted.
5. In his appeal before the High Court the complainant contended that thetrial before the Magistrate was without jurisdiction as the Magistrate shouldhave acted under Chapter XVIII with a view to committing the accused to theCourt of Session for trial as the facts disclosed an offence under s. 467,Indian Penal Code, which is triable exclusively by the Court of Session. Hecontended that the offence was made out on his evidence and as registrationreceipts were valuable securities under s. 30 of the Indian Penal Code a chargeunder s. 467, Indian Penal Code should have been framed. This argument foundfavour with the High Court and it was held that although s. 467, Indian PenalCode was not mentioned in the complaint, a charge under that section ought tohave been framed. The High Court pointed out that it was the duty of theMagistrate to apply the correct law and if the facts disclosed an offenceexclusively triable by the Court of Session he ought to have framed that chargeand not assumed jurisdiction over the case by omitting it. In the opinion ofthe High Court a prima facie case existed for framing a charge under s. 467,Indian Pena! Code, which meant that the case ought to have been committed tothe Court of Session. The acquittal was, accordingly, set aside and retrialordered. In this appeal the judgment is assailed as erroneous and against theprinciple?; laid down by this Court for dealing with appeals againstacquittals.
6. Mr. Garg relies strongly upon two cases of this Court. They are AbinashChandra Bose v. Bimal Krishna Sen and Anr. A.I.R. 1963 S.C. 316 and Ukha Kolhev. State of MaharashtraA.I.R. 1963 S.C. 1531. He contends that the trialbefore the Magistrate, in so far as it went, was with jurisdiction and it couldnot be set aside merely because the High Court thought that a charge under s.467, Indian Penal Code might have been framed. He contends that such aproceeding is not contemplated under s. 423(1)(a). Criminal Procedure Code asexplained by this Court in the two cases cited above. He further refers toBarhamdeo Rai and others v. King- Emperor : AIR1926Pat36 , BalgobindThakur and others v. King EmperorA.I.R. 1926 Pat. 393 and K. E. V. RazyaBhagwanta4 BOM. L.R. 267 as instances where, the trial being withjurisdiction, no retrial was ordered even though it was submitted to the HighCourt that some other offences triable exclusively by the Court of Session withwhich accused could be charged, were also disclosed. These cases need notdetain us. They do not deny the power of the High Court to order a retrial. TheHigh Courts in those cases did not order a retrial because the accused wereconvicted of lesser offences and the sentences imposed were considered adequatein all the circumstances of those cases.
7. The two cases of this Court were considered by us in Rajeshwar PrasadMisra v. State of West Bengal : 1965CriLJ817 . We have pointed out therethat a retrial may be ordered for a variety of reasons which it is hardlynecessary or desirable to state in a set formula and the observations of thisCourt are illustrative but not exhaustive. The Code gives a wide discretion anddeliberately does not specify the circumstances for the exercise of thediscretion because the facts of cases that come before the courts are extremelydissimilar. We pointed out that it would not be right to read the observationsof this Court (intended to illustrate the meaning of the Code) as indicating inadvance the rigid limits of a discretion which the Code obviously intendedshould be developed in answer to problems as they arise. We gave someillustrations of our own which fell outside those observations but which mightfurnish grounds, in suitable cases, for an order of retrial. This case alsofurnishes an example which may be added to that list. The High Court pointedout that there was evidence that the endorsements on the receipts were not madeby Janardhan. Janardhan denied on oath that he had written them and stated thatthey were written by one of the respondents, with whose handwriting he claimedto be familiar. There was prima facie evidence to show that the two deeds whichwere presented for registration were taken out on the strength of forgedreceipts. No suggestion was made to Janardhan in cross-examination that he hadendorsed the receipts in favour of Matukdhari or Dhanukdhari, If he had not writtenthe endorsements, some one else must have done so. No doubt handwriting expertscould have been examined. The Magistrate could have taken action under s. 73 ofthe Indian Evidence Act but this was not done. If the Magistrate had appliedhis mind to the problem he would have seen easily that a prima facie case offorgery was made out. He should then have considered whether the receipts werevaluable security or not If he had done that he would have seen that the mainoffence would prima facie be one under s. 467, Indian Penal Code read with s.471 and the other offences were subsidiary. It was thus not proper for him tochoose for trial only such offences over which he had jurisdiction and toignore other offences over which he had none. His duty clearly was to frame acharge under s. 467, Indian Penal Code and to commit the appellants to standtheir trial before the Court of Session.
8. It was open to the High Court, while hearing an appeal under s. 417(3) ofthe Code to direct the Magistrate to frame a charge for an offence which wasprima facie established by the evidence for the prosecution and also to orderthat the accused be committed to the Court of Session. It is wrong to contendthat the High Court had no jurisdiction in the matter because the trial beforethe Honorary Magistrate (in so far as it went) was with jurisdiction. If itwere so there would be no remedy whenever a Magistrate dropped serious chargesousting him of his jurisdiction and tried only those within his jurisdiction.The High Court followed a case of the Sind Chief Court reported in Dr. SanmukhSingh Teja Singh Yogi v. Emperor A. I. R. 1945 Sind 125 where retrial wasordered in very similar circumstances. We were referred to that ruling and onreading it we do not think the High Court was wrong in accepting it as acorrect precedent. For, however hesitant the High Court may be to set aside anorder of acquittal and to order retrial, it has jurisdiction under the Code todo so, if the justice of the case clearly demands it and a case of omissionfrom the charge of a serious offence prima facie disclosed by evidence, is oneof those circumstances in which the power can properly be exercisedparticularly when the charge for the offence, if framed, would have ousted thecourt of trial of its own jurisdiction.
9. Mr. Garg submitted finally that acquittals are not set aside in otherjurisdictions and cited the example of English Criminal Law. He submittedfurther that the setting aside of an acquittal with a view to holding a secondtrial robs the accused 'of the reinforcement of the presumption ofinnocence which is the result of the acquittal.' As to the firstsubmission it is sufficient to say that in our criminal jurisdiction a retrialis possible and we need not be guided by other jurisdictions. No doubt the HighCourt must act with great care and caution and use the power sparingly and onlyin cases requiring interference. As to the second it is not necessary toconsider how the presumption of innocence is reinforced by an acquittal and towhat extent. The phrase in any event is hardly apt to describe a case where theaccused is acquitted perversely, or without jurisdiction. All that can be saidis that these appellants were presumed to be innocent at their first trial andwill not be thought less so at their and will not be thought less so at theirsecond trial till their guilt is established legally and beyond all reasonabledoubt.
10. In our judgment the High Court acted within its jurisdiction when it setaside the acquittal of the appellants and made an order for their retrial inthe terms it did.
11. Appeal dismissed.