Sankaran Nair, J.
1. This is an application to reverse the order of the District Magistrate of Cuddapah setting aside an order of discharge passed by the 2nd Class Magistrate of Kadiri, and directing a further inquiry by the 1st Class Sub-Divisional Magistrate of Cuddapah on the sole ground that the Sub-Magistrate has misappreciated the evidence and arrived at a wrong conclusion on the facts.
2. The complaint was one of theft of a document, punishable under Section 380, Indian Penal Code. The 2nd Class Magistrate examined 8 witnesses and filed 6 exhibits for the prosecution and 9 exhibits on behalf of the defence, and discharged the accused as, in his own words, 'the very existence of a document of the kind said to have been lost is doubtful and the case bears distinct marks of having been trumped up, as the witnesses are all untrustworthy.' The District Magistrate, on the other hand, has 'no doubt that the document existed,' and he also saw no reason to consider that the witnesses have been giving false evidence, and accordingly directed further inquiry by another magistrate.
3. The petitioner's Counsel refers to Criminal Revision Case No. 501 of 1900, where this Court reversed an order of the District Magistrate directing a further enquiry on the ground of misappreciation of evidence. He also relies upon Joy Gopal Bannerjee v. The Emperor 11 C.W.N. 173, Queen Empress v. Erram Reddi I.L.R. (1885) M. 296 and Rash Behari Lal Mandal and Ors. v. The Emperor 12 C.W.N. 117. Under the Codes of 1871 and 1892 it has been held that this Court will not exercise its power of revision on the ground that the lower Court has not rightly appreciated the evidence the reason being that it is for the Court called upon to determine whether the person charged is guilty or not, to consider and weigh the evidence, and any error as to the probative force and effect is not open to correction on revision, but only on appeal 5 M.H.C.R. 10 and In the matter of Aurokiam I.L.R. (1878) M. 38.' The same view has been accepted under the Codes of 1882 and 1898 in the case of Queen-Empress v. Lakshmi Nayakan I.L.R. (1896) M. 238 and Criminal Revision Case No. 343 of 1900. - Weir, page 255. The practice, so far as I am aware, has been in accordance with this view. While it is quite clear to me that the High Court is entitled to deal with any case on facts, it has been held that only in cases of defective investigation or failure to consider important evidence, or consideration of evidence from a wrong point of view, or contravention of any provision of law and of conviction upon facts which will not support the same, will the revisional powers of the Court be exercised. It is clear, therefore, assuming that the District Magistrate is right in his estimation of the evidence, that this Court would not have interfered with the order of discharge on the grounds stated by him. If the 2nd Class Magistrate had proceeded to frame a charge against the accused, and tried and acquitted him, the High Court alone could have interfered with the order of acquittal or convicted him on appeal by the local Government.
4. The District Magistrate's powers in this respect are defined by Sections 435 and 437 of the Code of Criminal Procedure. Under Section 435, he is entitled to call for the record to satisfy himself 'as to the correctness' of any finding or 'order, and may order' further enquiry 'under Section 437 into the case of any discharged person, or refer the case to the High Court under Section 438 for orders. Reading Sections 439 and 423 together, there is no doubt that the High Court can set aside a finding of fact and direct a retrial or further enquiry. It was decided by the High Court in Queen-Empress v. Amir Khan I.L.R. (1885) M. 337 that the 'further enquiry referred to in Section 437, is not the same as fresh enquiry in Section 436, and does not include the power to direct a Subordinate Magistrate to reconsider the same evidence on the sole ground that he has misappreciated the evidence,' and it was pointed out that 'the High Court itself which has a power that the Magistrate does not possess, namely, to order a retrial, is not warranted in so doing merely because the Magistrate who has discharged an accused person, in a case he was competent to try and finally determine, arrived at a conclusion different from that at which the High Court would have arrived as to the credit due to the witnesses' and that 'if in cases not falling under Section 436, a District Magistrate has improperly discharged an accused person, by reason of his having misapprehended the law or committed a material error in procedure, the District Magistrate should, under Section 438, report the case for opinion and orders of the High Court.'
5. The majority of the Judges of the Calcutta High Court took a different view as to the effect of the words 'fresh enquiry' and held that it was open to the District Magistrate for sufficient reasons, acting under Section 437, to direct a reconsideration of the case on the same evidence, and further, Wilson J., expressing the opinion of the majority of the Judges, said: 'In a case not triable only by the Court of Session if the Sessions Judge or the District Magistrate is satisfied that on the evidence taken, there is a clear case for charging and trying the accused and there is no reason for further magisterial examination I think it is ordinarily his duty to refer the case to this Court which can make a suitable order and not to direct a further enquiry by a Magistrate.' This Court, in Queen-Empress v. Balasinnatambi and Ors. I.L.R. (1890) M. 334 agreed with the decision of the Calcutta High Court but did not indicate in their judgment the nature of the order to be passed under Section 437 that would be appropriate to the grounds on which the revisional powers of the District Magistrate are to be exercised. It is clear from Queen-Empress v. Amir Khan I.L.R. (1885) M. 337 and Hart Doss Sanyal v. Saritulla I.L.R. (1888) C. 622, therefore, that the balance of authority is in favour of the view that the District Magistrate, when he has come to the conclusion, as in this case, that prima facie the prosecution evidence is reliable, ought to have referred the case to this Court for orders instead of setting it aside himself on the grounds formulated by him in his order. It may be different when he exercises his power for other reasons than mere misappreciation of evidence. I am inclined to take this view. My reasons are these. Where a Court competent to decide whether the accused is guilty or not holds that he is not guilty on a consideration of the evidence adduced by the prosecution, that finding should, if at all, be set aside only by a Court competent to set aside such finding of fact, that is, by the High Court under Section 439 of the Code of Criminal Procedure read with. Section 423 The District Magistrate, it is clear, is not entitled to come to a final conclusion on the evidence and hold that a prima facie case has been made out because, in that case, the proper order would be one to direct a charge to be framed and try the accused on that charge. Prinsep J., no doubt, in the case of Hart Doss Sanyal v. Saritulla I.L.R. (1888) C. 622 was of opinion that he had such power, but I agree with Wilson J. who delivered the judgment of the majority of the Judges that that view is not correct for the reasons given by him at p. 620. In addition to these reasons, I would add that Section 436, which empowers the District Magistrate to direct a committal, which involve, the framing of charge, and for which a finding that a prima facie case has been made out, is a preliminary condition, supports the same view. The case Queen Empress v. Munisami and Ors. I.L.R. (1891) M. 39 apparently accepts that principle. The proper function of the District Magistrate is, therefore, criticism. He ought to point out to the Subordinate Magistrate the reasons which may have led to an incorrect conclusion, reasons which have been held to justify the High Court in interfering with the findings of fact, to enable that Magistrate to come to a right conclusion, and not to dictate to him the decision to be pronounced. In a case of difference of opinion upon the evidence, he ought to refer the matter to the High Court which has also the powers of the appellate Court to deal with that reference. The procedure above indicated keeps in view the ordinary distinction between the revisional and appellate jurisdictions of a Court. A power to order what is practically a retrial, to give a complainant another opportunity of re-examining his witnesses and adducing fresh evidence ought not to be presumed as it is unjust to the accused and opens a wide door to perjury and corruption. That the case is only one of discharge which is not, ordinarily at any rate, a bar to fresh prosecution, supports the same view, as the injustice, if any, to the complainant may be thereby remedied. That it will be generally inquired into by the same Magistrate and good reasons will have to be adduced by the complainant for coming to a different conclusion, is a sufficient guarantee that this privilege is not likely to be abused.
6. Assuming that the Magistrate has the power, he ought to exercise it subject to the limitations placed by the High Court upon their own larger powers. It has been suggested that the High Court refuse to interfere for the reason that the evidence has already been considered by two Courts. I have already pointed out that this is not the ground of decision. This was not so in the case reported in Weir, page 257, nor in the cases in 5 M.H.C. Ap X, and In the matter of Aurokiam I.L.R. (1878) M. 38. The right of appeal given to the Local Government against a judgment of acquittal by an appellate Court does not support that argument.
7. But as the records have been called up and the District Magistrate considers the view of the 2nd Class Magistrate unsustainable, I have heard Counsel on the evidence to see whether this Court ought to interfere in revision.
8. The prosecution case is that an unregistered sale deed executed by the father of the 1st accused in favour of the complainant's uncle more than 35 years ago, was taken by him to the first accused for preparing an application for transfer of patta; that the latter gave it to a petition-writer, Subban Singh, to prepare the transfer application in one Somayya's house and, when, after preparing the application, the petition-writer went to the Sub-Registrar to show him this and a lease-deed which he had prepared, leaving the sale deed in Somayya's house, the 2nd accused took it and rushed into the house of the 1st accused with it. The prosecution 2nd and 4th witnesses are admittedly interested in the complainant. No independent witnesses of Kadiri are produced. No explanation is given for the necessity of this application after a lapse of 30 years. There is no explanation whatever, why it was necessary to take the documents to the Sub-Registrar. No motive on the part of the 2nd accused is alleged, much less proved. He is a Mahomedan, while the 1st accused is a Hindu. For these reasons, I see no reason to interfere with the order of discharge.