Judgment

CHANDRACHUD, J.:- The appellants Satyendra Nath Dutta and Subhash Mauzumdar were tried by the learned Civil and Sessions Judge, Lucknow, for offences in connection with the death of one Nanhey Lal and injuries to his son, Raj Kishore. Satyendra Nath Dutta was charged under Section 302 and Section 307 read with Section 34 while the other appellant was charged under Section 307 and Section 302 read with Section 34 of the Penal Code. The learned Sessions Judge acquitted the appellants upon which Ram Narain, a brother of the deceased Nanhey Lal, filed a revision application in the High Court of Allahabad under Section 439, Code of Criminal Procedure, challenging the order of acquittal. It is said that the State of U. P. wanted to file an appeal against the order of acquittal but it could not do so as the record of the case was missing. The High Court allowed the revision application, set aside the order of acquittal and directed that the appellants be re-tried by the Sessions Court. This appeal by special leave is directed against the judgment of the High Court ordering the re-trial.

2. Section 417 (1) of the Code of Criminal Procedure, 1898 provides that the State Government may direct the Public Prosecutor to present an appeal to the High Court from an order of acquittal passed by any Court other than the High Court. By sub-section (3) the High Court is empowered to grant special leave to the complainant to appeal from the order of acquittal if such an order is passed in a case instituted upon a complaint.

3. Section 439 (1) of the Code, which deals with the revisional powers of the High Court provides that in the exercise of revisional jurisdiction the High Court may exercise any of the powers conferred on a court of appeal. As the Court of appeal is entitled under S. 423 (1) (a) to reverse an order of acquittal or to direct a re-trial, the High Court in the exercise of its revisional powers would also be enticed to record a conviction by reversing the order of acquittal. But subsection (4) of S. 439 provides expressly that nothing contained in the section "shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction." This. provision has been judicially interpreted and it is necessary to refer to the decision of this Court bearing on the construction thereof.

4. In D. Stephens v. Nosibolla, 1951 SCR 284 it was held by this Court that the revisional jurisdiction conferred by Section 439 of the Code ought not to be exercised lightly when it is invoked by a private complainant against an order of acquittal which could have been appealed against by the Government under Section 417. "It could be exercised only in exceptional cases where the interests of public justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of justice." In other words, the revisional jurisdiction of the High Court cannot be invoked merely because the lower court has taken a wrong view of the law or mis-appreciated the evidence on record. In Logendranath Jha v. Polailal, 1951 SCR 676 = 52 Cri LJ 1248) the High Court, at the instance of a private complainant, set aside the order of acquittal passed by the Sessions Court and directed that the accused be re-tried. This Court held that the provision contained in Section 439 (4) of the Code cannot be construed to mean that in dealing with a revision petition by a private party against an order of acquittal the High Court could, in the absence of any error on a point of law, re-appraise the evidence and reverse the findings of facts, provided only it stops short of finding the accused guilty and passing sentence on him. The order of re-trial based on a re-appraisal of evidence was characterised by this Court as a formal compliance with the requirements of Section 439 (4). In K. Chinnaswamy Reddy v State of Andhra Pradesh, (1963) 3 SCR 412 the Court while emphasising that the revisional jurisdiction should be exer