Yahya Ali, J.
1. The petitioner was the first accused in C.C. No. 1415 of 1945 on the file of the Stationary Sub-Magistrate, Palghat. He was along with six others charged under Section 430, Indian Penal Code, for causing mischief by digging a channel in a certain plot of land and wrongfully diverting water from the respondent's wet lands. After examining the prosecution witnesses, the trying Magistrate discharged accused 1 and 6 and framed charges against the remaining accused. Against the order discharging the petitioner (first accused), an application was filed in the Sessions Court, South Malabar, by the complainant. The learned Sessions Judge set aside the order of discharge so far as the petitioner is concerned and directed further enquiry. The present revision petition has been filed against that order.
2. The sole ground on which the further enquiry has been ordered by the learned Sessions Judge is that in a petition dated 3rd December, 1945, sent by the petitioner to the Sub-Magistrate, Alatur, the petitioner has stated that he directed the second accused to divert the water. The learned Sessions Judge pointed out that if the petition is admitted in evidence and proved it would show that the first accused abetted by instigation the commission of the offence with which the second accused was charged.
3. The complainant alleged in the Sessions Court that he had applied for an adjournment to summon a clerk of the Alatur Sub-Magistrate's Court to prove the petition referred to above, and that in spite of it the Magistrate discharged the first accused on the ground of want of evidence. On the filing of the revision petition a report appears to have been called for by the learned Sessions Judge from the Sub-Magistrate with reference to this averment and the Sub-Magistrate denied that any such application was made for adjournment or that a certified copy of any such petition was tendered in evidence. Subsequent to this an affidavit was filed by the complainant respondent's advocate to which reference is made by the learned Sessions Judge ; but apparently the learned Sessions Judge did not further consider the matter in view of the specific denial by the Sub-Magistrate of the fact of any such application for adjournment having been made or petition having been offered in evidence. After discussing this part of the case the learned Sessions Judge said, ' however as the lower Court's ground for discharging the first accused cannot be supported in view of the evidence of the petition, the order of the discharge of the first accused is set aside.' Therefore, the order of the Sessions Judge is based upon the ground that fresh evidence is available which would establish the fact of instigation on the part of the petitioner and in view of that circumstance the matter should be reopened and enquired into afresh. Such a course is not ordinarily to be adopted by a revision Court. As pointed out by Sankaran Nair, J., in Lakshmi Narasappa v. Mekala Venkatappa (1907) 18 M.L.J. 57 : I.L.R. 31 Mad. 133
a power to order what is practically a re-trial, 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.
4. The learned Judge observed:
That the case is only one of discharge, which is not ordinarily at any rate a bar to a fresh prosecution, supports the same view as the injustice, if any, to the complainant may be thereby remedied.
These remarks are quite apposite to the present case. It is open to the respondent to file a fresh complaint forthwith on the same averments against the petitioner and to make the fullest use of the document upon which he is resting his present case in revision. That however is not a special or sufficient ground for the Court of revision to set aside the order of discharge or to direct a fresh enquiry.
5. The petition is allowed and the order of the Sessions Judge is set aside.