1. Eight persons were charged with the murder of one Venkatarama Reddi. The Committing Magistrate discharged three of them and committed the rest for trial. At the trial one of the Assessors thought that all the five accused were guilty, two thought that one of them, the fifth was innocent and the fourth that two, the third and the fifth were. The Sessions Judge, however, acquitted all of them. Against this acquittal the Public Prosecutor has appealed and we have called upon the three accused who were discharged by the Committing Magistrate to show cause why they should not be committed for trial. As we are ordering a re-trial, we propose to say as little as possible about the evidence in the case. A great portion of it relates to the parts said to have been played by two of the discharged accused. It is alleged that while the acquitted accused were parleying with the murdered man, these two drove slowly past in a motor car and instigated them to shoot. The Committing Magistrate on the strength of certain alibi evidence, which the Sessions Judge considered to be patently false, came to the conclusion, that this part of the story could not be true. The man who is said to have addressed the deceased just before he was shot is the son of one of these persons, If the alibi evidence were true, he was as much entitled as his father to be discharged and yet he was committed for trial.
2. It is, obvious that, if this part of the story is an invention, the rest of it is entitled to no credit. The Committing Magistrate came to the conclusion that it was an invention on evidence that the Sessions Judge rejected as false. At the trial, this particular issue--the two accused who were specially affected by it having been discharged--attracted less attention than it deserved. It was, however, a most material issue and we are of opinion that it could not be properly tried in the absence of the persons whom it most concerned. Ex hypothesi they were the instigators of the murder and they should certainly have been committed for trial along with their supposed instruments.
3. In Criminal Appeal No. 449, we set aside the acquittal of the respondents and direct that they be retired on the same charges. As regards the discharged men, Mr. Grant has expressed a doubt as to our jurisdiction to set aside the discharge and direct their committal for trial. A similar objection was taken before Straight, J., in Empress v. Ram Lal Singh 6 A. 40 : A.W.N. (1883) 186 and he negatived it holding that he had power to set aside an order of discharge and direct a committal. With respect, we think that his decision wag right. Section 439 of the Criminal Procedure Code confers on us the powers granted to a Court of Appeal by Section 423 and one of the powers so granted is that of directing an accused to be committed for trial. The same view was expressed by Wilson, J., in Hari Dass Sanyal v. Saritulla 15 C. 608 : 13 Ind Jur. 55: 'The High Court, under Section 423, embodied in Section 439, can set aside the order of discharge, and direct a charge to be framed and tried by the proper Court. It can, under Section 437 and probably also under Section 439, order a further enquiry instead of a committal.' This decision was followed in Emperor v. Varjivandas 27 B. 84 : 4 Bom. L.R. 779 where it was held that the High Court had jurisdiction under Sections 423 and 439, Criminal Procedure Code, to set aside an order of discharge and to direct that a person improperly discharged be committed for trial. We set aside the order discharging the three respondents and direct that they be committed for trial on the same charges as the other five accused.