Debabeata Mookerjee, J.
1. This appeal by special leave has been brought from an appellate order of acquittal made by the Sessions Judge of Murshidabad whereby he set aside the convictions of the respondents under Sections 379 and 427 of the Indian Penal Code and directed a new trial to be had upon a charge under Section 147 of the Code.
2. The appellant charged the respondents with having caught and carried away fish and damaged a khatan in a fishery which he claimed to own and possess. The respondents denied the charges and stated that the fishery was jointly possessed by them with the appellant.
3. The Magistrate held on evidence that the respondents were guilty of theft and mischief. He accordingly convicted and sentenced them under Sections 379 and 427 of the Indian Penal Code.
4. Upon conviction the respondents took an appeal which was allowed by the learned Sessions Judge on the ground that the Magistrate who tried the case being invested with the powers of a Magistrate of the second class was not competent to try it. The Judge held that the allegations, if believed, made out a case of rioting under Section 147 and as such the trying Magistrate was not competent to try it. In this view the convictions were quashed and a retrial was ordered to be held by a Magistrate with first class powers.
5. It is quite clear that the learned Judge completely misdirected himself in thinking that the Magistrate having had only the powers of a Magistrate of the second class was incompetent to try a charge of rioting. Indeed a charge under Section 147 can be tried by any Magistrate. The learned Judge disposed of the appeal on the preliminary ground of jurisdiction without entering into the merits of the matter.
6. We have no manner of doubt that the learned Judge gravely erred in taking the course he did. But the question that arises for consideration in this appeal is whether there was an acquittal which might entitle the appellant to ask for special leave to appeal against the decision of the Judge under Section 417 (3) of the Code of Criminal Procedure.
7. Section 417 of the Code provides that the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. Sub-section (3) says that
'If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court'.
8. Thus in order that the jurisdiction of this Court might be invoked under Section 417, there has to be an acquittal and no leave to appeal ran be granted unless the appeal is brought either from an original or appellate order of acquittal.
9. The question that arises is whether an order directing retrial is an order of acquittal within the meaning of Section 417(3) of the Code of Criminal Procedure.
10. Section 423 of the Code defines the powers of the appellate court in disposing of an appeal. Clause (b) of Sub-section (1) of that Section which is directly relevant to the present consideration provides that
'in an appeal from a conviction the appellate court may reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such appellate court or committed for trial.'
The rest of the clause does not require to be referred to in the present context.
11. The learned Judge who dealt with the respondents' appeal did so in exercise of the power conferred upon him by Clause (b) of Sub-section 1 of Section 423. The respondents had been convicted and it was against the order of conviction that the appeal was brought. In disposing of such appeal the appellate court was entitled to acquit the accused, discharge them, order them to be retried by a Court of competent jurisdiction or commit then for trial. In this case we are concerned only with the question whether there was an acquittal within the meaning of that clause so that the order made by the learned Judge could be challenged, under Section 417 (3).
12. Section 423 (1) (b) entitles the appellate Court to reverse the finding and sentence and then to interfere in any of the ways enumerated in this part of the clause. It may acquit the accused or discharge him or order him to be retried or commit him for trial. But before the appellate Court can interfere in any of these ways, it has to reverse the finding and sentence of the trial Court. In this case there was no doubt such, reversal, but the order actually made was not one of acquittal, or discharge or committal but one of retrial. While it must be held that reversal of the finding and sentence is the primary condition for exercise of the other powers enumerated in this part of the clause, there can be no doubt that the Code makes a distinction between acquittal, discharge, committal and retrial. Any of these forms of interference has to be preceded by an order of reversal of the finding and sentence of the trial Court; but then the precise order which is made after such reversal will determine whether the person affected by lit will have the right to enter the superior Court by way of appeal. In our judgment an order of retrial is not an order of acquittal. This follows as a matter of language. That being so, the appellant had no right to ask for leave to appeal and to prefer an appeal against the order of the learned Judge granting a new trial. We must accordingly hold that the appeal in the present case being directed against an order of retrial is misconceived and must accordingly be dismissed.
13. In view, however, of the grave error into which the Judge below has fallen in thinking that the Magistrate with second class powers had no jurisdiction to deal with a case which disclosed commission of an offence of rioting, we think, it would be only right to exercise our regional powers and treat the memorandum of appeal as a revision petition. We accordingly do so in the interest of justice and set aside the order of the learned Judge and direct a re-hearing, of the appeal on the merits.
D.N. Das Gupta, J.
14. I agree.