Judgment

WANCHOO, J. : This is an appeal by special leave against the judgment of the Andhra Pradesh High Court. The appellant was convicted under S. 411 of the Indian Penal Code by the Assistant Sessions Judge of Kurnool. Along with him another person Hussain Saheb was also tried and was convicted under Ss. 457 and 380 of the Indian Penal Code. The case for the prosecution briefly was that the house of Ramayya in Dudyla was burgled on the night of April 20, 1957. Ramayya and his wife were sleeping outside and on waking in the morning they found that the house had been burgled and valuable property stolen. The matter was reported to the police and during the course of investigation the police recovered 17 ornaments on the information given by the appellant. The other accused had also given information on the basis of which another stolen ornament was recovered. The Assistant Sessions Judge on a consideration of the evidence came to the conclusion that the other accused had actually committed house breaking and had removed ornaments from the house of Ramayya and had handed over 17 ornaments out of that properly to the appellant. He also came to the conclusion that the seventeen ornaments recovered at the instance of the appellant were in his possession and he, therefore, found him guilty under S. 411 of the Indian Penal Code. The appellant and the other accused went in appeal to the Sessions Judge. The Sessions Judge held that the appellant had not been proved to be in possession of the seventeen ornaments which were recovered at his instance from a garden. The statement of the appellant in this respect was that "he would show the place where he had hidden them (the ornaments)". Thereafter he went to the garden and dug out two bundles containing the seventeen ornaments from there. The Sessions Judge held that the recovery of ornaments from the garden at the instance of the appellant was proved; but he further held that that part of the statement of the appellant where he said that he had hidden the ornaments as not admissible in evidence. Therefore, he took the view that as the ornaments were recovered from a place which was accessible to all and sundry and there was no other evidence to show that the appellant had hidden them, it could not be held that the ornaments were in the appellant s possession. He therefore gave the benefit of doubt to the a appellant and ordered his acquittal. He also acquited the other accused at whose instance one of the stolen ornaments was recovered. This accused had stated that he had given the ornaments to Bada Sab (P. W. 5) and took the police party to Bada Sab and asked him to return the ornaments, which Bada Sab did. The Sessions Judge, however, on a consideration of the evidence against the other accused thought that the case against him was also doubtful and ordered his acquittal, though he ordered the return of ornaments to Ramayya.

2. This was followed by a revision by Ramayya against the appellant and the other accused. The High Court has allowed the revision and directed that the matter should go back to the Sessions Judge so that the accused should be re-tried on the charges on which they had been brought to trial on the former occasion. It is against this order of the High Court directing retrial that the present appeal by special leave is directed . It may be mentioned, however, that only Chinaswamy Reddy has appealed while the other accused has not appealed against the order of the High Court.

3. The main contention of the appellant before us is that this was a revision by a private party. There were no exceptional circumstances in this case which would justify the High Court in interfering with an order of acquittal at the instance of a private party. Further, it is urged that S. 439(4) of the Code of Criminal Procedure specifically forbids the High Court from converting a finding of acquittal into one of conviction and that a reading of the judgment of the High Court shows that by the