1. This was a case of mischief. The Second-class Magistrate, Trichinopoly Town, who tried it, appears to have held that there was a prima facie case against the accused and adjourned the trial to the 28th August to enable them to adduce evidence. The case was called on that day, and, as the complainant was not present, the Magistrate acquitted the accused under Section 247 of the Code of Criminal Procedure,
2. The complainant appealed to the District Magistrate (H. Sewell) and referred to the proceedings of the High Court, 5th November 1874 (Weir's Criminal Rulings, 283). Finding that the complainant had put in an appearance with his Vakil very shortly after the dismissal of the case, the District Magistrate reversed the order of his subordinate and directed a rehearing.
3. In explanation of his procedure the District Magistrate now submits that 'under Section 423 (a) any Appellate Court can set aside an order of acquittal, that section not being restricted to cases coming under Section 417. In the old Code, Section 272 provided that in no other case (i.e., other than cases in which the Government directed an appeal) shall there be an appeal from a judgment of acquittal passed in any Criminal Court, but this clause is omitted in the new Code.'
4. Notwithstanding the omission of the clause which formely found a place in Section 272 that' in no other case shall there be an appeal from a judgment of acquittal,' it seems quite clear that no Court except the High Court can entertain such an appeal.
5. Section 404 enacts the general rule--no appeal shall lie except as provided for. Sections 405 to 416 provide inter alia for appeals in certain cases, but not in any case of acquittal. It is only Section 417 that provides for appeals against orders of acquittal, and that requires that such an appeal shall be (1) directed by Government, (2) presented to the High Court. That being so, Clause (a) of Section 423 can only apply to the High Court.
6. Section 247 is a substitution for Section 205, for the third paragraph of Section 208, and for Section 212 of the former Code. In the proceedings of the High Court, 5th November 1874, although the Court held that the discretion vested in the Magistrate by Section 208 was wrongly exercised, yet it was also held that the order of dismissal was legal and should stand. In this view the order of the Second-class Magistrate in the present case was legal and should not be set aside.
7. It is not necessary in this case to refer to the powers of the High Court in revision under Section 439.
8. The District Magistrate's order is illegal and must be quashed.