Caspersz and Sharfuddin, JJ.
1. This Rule is directed against an order of acquittal by the District Magistrate of Burdwan sitting as an Appellate Court.
2. A preliminary objection Las been raised by the learned Counsel showing cause that we ought not to interfere in revision with such an order, and he has cited the provisions of Sub-section (5) of Section 439 of the Criminal Procedure Code. That sub-section runs as follows : 'Where under this Code an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.' The contention is that, as Government alone could have appealed against the order of the District Magistrate, we ought not to interfere in revision. But this argument overlooks the words 'at the instance of the party who could have appealed.' We are not here dealing with an application for revision at the instance of Government. The petitioner is the complainant, and we entertain no doubt that we can deal with an order of this kind in accordance with the practice of this Court in a series of cases.
3. The order we propose to pass is one which is usually passed, that is to say, the District Magistrate must re-hear the appeal. He overlooked the provisions of Section 531 of the Code, and based his judgment on the fact ascertained by local enquiry, not by the trying Magistrate but by the Sub-Divisional Officer, that the scene of occurrence was chur Kastosali, which is within the criminal jurisdiction of the neighbouring district of Nadia. The District Magistrate says : 'The story of the prosecution witnesses must be false if the place of occurrence and the land in dispute is actually in chur Kastosali.' We do not follow that reasoning. What the District Magistrate had to find, in a case under Sections 143 and 379 of the Indian Penal Code, was whether those offences had been made out, not with reference to any dispute as to jurisdiction but on the merits and in accordance with the evidence. The District Magistrate has not properly considered the case.
4. We must, therefore, make the Rule absolute, set aside the order acquitting the accused persons, and direct the District Magistrate to re-hear the appeal.