P. Narayana Pillai, J.
1. P.W. 2 in C. C. 1072 of 1972 on the file of the Second Class Magistrate, Trichur, is the Revision Petitioner. He and P.Ws. 1 and 3 are watchmen and P.W. 4 is the Superintendent in the Mepadom Rubber Estate. The accused, two in number, who were charged under Sections 447, 341, 324 and 34 of the Indian Penal Code were acquitted and it is that acquittal that is sought to be revised here.
2. The occurrence took place at or about 12-30 in the noon on August 8, 1971. The accused trespassed into the Estate and cut grass. When P.W. 2 asked them to go away the second accused wrongfully restrained him and the first accused cut him with a sickle. The plea of the accused was one of denial.
3. The Magistrate has in his judgment discussed the evidence adduced in the case only in so far as it relates to the offences under Sections 341 and 324 and not to the offence under Section 447 of the I.P.C. The evidence of the occurrence witnesses, P.Ws. 1 to 3, shows that the accused cut grass in the estate and that even after P.W. 2 asked them to go away they continued to remain in the estate. The evidence of P.W. 4 shows that the entry of the accused in the Estate was unauthorised. There is absolutely no discussion in the judgment about the nature of the entry. Therefore this case has to be sent back to the Magistrate for a proper consideration of the evidence in the case.
4. The only question then is whether it is open in revision to order retrial confining it to the stage from which the error crept in. Being a revision from acquittal retrial can be ordered only under Section 439(1) read with Section 423(1)(a) of the Criminal Procedure Code, Section 439(1) reads:
439. High Court's power of revision. (1) In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sec-lions 423, 426, 427, and 428 or on a Court by Section 338, and may enhance the sentence; and when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429.
and Section 423(1)(a) reads:
423. Powers of Appellate Court in disposing of appeal.- (1) The Appellate Court shall then send for the record, of the case, if such record is not already in court. After perusing such record, and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and, in case of an appeal under Section 411-A, Sub-section (2), or Section 417, the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
The words 'trial', 'retrial' and 'new trial' are used in the Criminal Procedure Code wherever necessary. By 'criminal trial' is meant the determination of a person's guilt and 'retrial' a second judicial trial, A second trial need not necessarily be from the very beginning. It may be from the very beginning or from a particular stage in the previous trial. In other words it may be limited or partial or it may be unlimited. It would be a retrial even if it is not from the very beginning. On the other hand a new trial is a de novo trial. It is a fresh trial from the very be-ginning. Section 232(1) of the Code which deals with the effect of material error in charge, provides for new trial when the accused is misled in his de-fence by the absence of a charge or error in the charge. In Section 423(1)(a) of the Code instead of the words 'new trial' it is the word 'retrial' that is used.
5. There is no indication any-where in Section 423(1)(a) that the expression 'retrial' is used in it in an unlimited or unrestricted sense. In the absence of any indication to the contrary it can be taken to mean partial retrial also. If retrial can be limited or partial it can be ordered from the stage at which an error or illegality has crept in.
6. In Chinnaswamy Reddy v. State of Andhra Pradesh : 3SCR412 the appellant was convicted by the trial Court, but acquitted in appeal by the Sessions Court. The High Court in revision set aside the acquittal and ordered retrial by the Sessions Judge on the ground that admissible evidence had been ruled out by him. It was the correctness of it that came up for consideration before the Supreme Court, The Supreme Court held that it was competent for the High Court in revision to order re-hearing of the appeal by the Sessions Judge. In citing instances where retrial could be ordered the Supreme Court said that it could be in
cases where the trial court had no jurisdiction to try the case but still acquitted the accused or where the trial court had wrongly shut out evidence which the prosecution wished to produce or where the appeal court wrongly held evidence which was admitted by the trial court to be inadmissible or where material evidence had been overlooked either by the trial court or by the appeal court or where the acquittal was based on a compounding of the offence which was invalid under law.
It was held there that in a revision from an order of acquittal by the appellate Court the court of revision could order retrial by the trial court or re-hearing of the appeal by the appellate Court and that it depended on the facts of each case as to which of those courses should be adopted. That shows that retrial can be limited to hearing of arguments alone. This decision was reaffirmed by the Supreme Court in Mahendra Pratap Singh v. Sarju Singh : 1968CriLJ665 .
7. There was a difference of view between two learned Judges of this Court in Kunjan Sivan v. State of Kerala :1969 Ker LT 602 regarding the actual decision of the Supreme Court in : 3SCR412 , one learned Judge taking the view that what the Supreme Court said in that decision was that retrial under Section 423(1)(a) of the Cri. P. C. meant de novo trial and the other that it included restricted trial also. When the matter was referred to another learned Judge his opinion was that the decision of the Supreme Court in : 3SCR412 was that retrial could be partial also.
8. This Court had even previously taken the view in Mariyam v. State of Kerala 1961 Ker LT 33 that the retrial contemplated by Section 423(1)(a) could be restricted and that it could be ordered from the stage at which the error or illegality crept in.
9. In conclusion it can be said that the expression 'retrial' as used in Section 423(1)(a) of the Code includes limited retrial also. Retrial can be ordered from the stage at which the error or illegality crept in. It can be restricted even to hearing.
10. In the present case mis-carriage of justice has arisen on account of the trial Magistrate not having duly considered the evidence which the prosecution had already adduced regarding the offence of trespass. Therefore this Revision Petition is allowed by setting aside the acquittal of the accused and sending the case back to the trial court for rehearing the case on the evidence already on record and disposing of the matter afresh.