1. This is an appeal by three persons, Sheikh Hazir, Sheikh Ali Hossein and Shamser Ali from a conviction in a trial before the Additional Sessions Judge of Mymen singh and a jury, of offences under Sections 148 and 325/149, Indian Penal Code. The case against the appellants was that they were concerned in a riot in which a man was killed. We need not refer to the details of the case; and it is enough to say that the defence set up was that the complainant's party were the aggressors and that such of the appellants as were present on the occasion acted in self-defence. The jury disregarded this plea and we have no jurisdiction to review that decision. But it is alleged that the Judge misdirected the jury as follows: The first appellant Shaikh Hazir had laid before the Police information embodying a counter-complaint, and the Judge's note of his charge to the jury on this matter is as follows. 'The defence. The counter information (read) may he taken to amount to a plea of self-defence. [At the same time it contains an admission that all three accused persons were present at the occurrence and it does not assert that the accused sowed the paddy but only that they went to the land for the purpose of sowing.]' It is contended that this passage shows that evidence was improperly admitted, because a statement by Hazir is described as containing an admission by the other two appellants and the counter-information was, therefore, admitted as evidence against them. We are of opinion that this contention is sound. It does not seem that Ali Hossein and Shamser Ali denied their presence but their presence was a relevant fact and it was sought to prove it by the counter-information. This was, however, properly admitted as against Hazir, since though it contained a statement made by him to a Police officer, it cannot be regarded as a confession under Section 25 of the Evidence Act. But neither Ali Hossein nor Shamser Ali was a party to it, and it cannot be regarded as containing a statement put forward by them or on their behalf, because it was proved and put in by the prosecution. We hold, therefore, that there was an improper admission of evidence as far as Ali Hossein and Shamser Ali are concerned. We are asked also to hold that there was a misdirection But except in so far as a wrongful admission of evidence is necessarily a misdirection, we cannot do this, and the fact that the wrongful admission implies a misdirection cannot limit our powers in dealing with the former. The question then arises what our duty is Section 167 of the Evidence Act, 1872, enacts: 'The improper admission of evidence shall not be a ground of itself for a new trial or reversal of any decision in any case, if it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision. .' It appears to us impossible to read this enactment otherwise than as giving us power to enquire whether independently of the evidence objected to and admitted, which in this case was the counter-information so far as it affected the second and third appellants, there was sufficient evidence to justify the decision, and this enquiry can only be made by consulting the record before us. But it is argued that we have no power to do this, and that the only course open to us is to set aside the conviction and either acquit Ali Hossein and Shamser or send the case against them back for retrial. In support of this view we are referred to the judgment in the case of Sadhu Sheikh v. Emperor 4 C.W.N. 576. Here it was held that an Assistant Sessions Judge had misdirected the jury chiefly by wrongly putting the onus at proving a certain fact on the accused; and Maclean, C.J. after holding that Section 537, Criminal Procedure Code, did not apply said: 'we were then invited by counsel for the Crown to re-try the case ourselves instead of sending it back for re-trial. I am very doubtful whether we have under Section 423, Criminal Procedure Code, power to re-try the case ourselves, but if we have, this is not a case in which we ought to exercise it. I entertain, personally, a strong opinion that when a case has been tried before a jury, and the conviction has been set aside on the ground of misdirection, the accused is entitled to have his case retried before a jury, and that as a matter of procedure, and in justice to the accused, this course should be adopted'. He then refers to the reasoning in Makin v. Attorney-General for N.S. Wales (1894) L.R. App. Cas. 57 : 63 L.J.P.C. 41 : 6 R. 373, 99 L.T. 778 : 17 Cox. C.C. 704, 58 J.P. 148. It will be observed that this decision refers to a case of misdirection, so that Section 167 of the Evidence Act did not apply to it. It differs from the present, therefore, because we have a power of enquiry into the merits of the case independently of Section 423, Criminal Procedure Code, which the Court there had not. At the same time the general principle laid down is binding on us, and we have no wish to dissent from it. We, therefore, consider that we ought to send the case against Ali Hossein and Shamser Ali back for retrial. But it is to be observed that in Sadhu Sheikh v. Emperor 4 C.W.N. 576, the Court found it impossible to say that the misdirection had occasioned a failure of justice. Had they found otherwise, we may suppose they would not have ordered a re-trial. Bearing this in mind if we considered that the improperly admitted evidence was so trivial that it could not have occasioned a failure of justice we should not order a re-trial, but should proceed to make such an enquiry as is contemplated by Section 167 of the Evidence Act.
2. The result is that the appeal of Shaikh Hazir is dismissed. The appeals of Shaikh Ali Hossein and Shamser Ali are allowed. Their convictions are set aside and the cases against them must be re-tried by the Sessions Judge or the Additional Sessions Judge of Mymensingh and a jury.