JUDGMENT

Y.K. Sabharwal, J.

The appellants were tried for an offence under Section 302/34 of Indian Penal Code for commission of murder of one Rameshwar Yadav. The court of sessions held that the prosecution has failed to prove charge levelled against them beyond reasonable doubt and thus acquitted all of them. The judgment and order of acquittal was challenged by the informant in a revision petition. The High Court by the impugned judgment, setting aside the judgment and order of acquittal in favour of the appellants, has remitted the case for its retrial by court of sessions in accordance with law directing the court to decide the matter on the basis of evidence and material already on record and not allow parties to adduce further evidence.

2. Mr. P.S. Mishra, learned counsel for the appellants submits that the trial court had given cogent reasons and on due appreciation of evidence directed the acquittal of the accused and the impugned judgment of the High Court clearly amounts to reappreciation of evidence which is not permissible in the exercise of revisional jurisdiction. Learned counsel has taken us through the judgment and order of the trial court to buttress his submission that the evidence and material on record was duly considered by the court of sessions as a result whereof the conclusion was reached that prosecution has failed to establish its case beyond reasonable doubt. On the other hand Mr. B.B. Singh and Mr. A.P. Sahay, learned counsel appearing for the State and the informant have taken us also through the depositions of some of the witnesses to buttress their submission that the court of sessions has overlooked material evidence which has resulted in manifest illegality and gross miscarriage of justice.

3. The principles on which revisional court can set aside a judgment and order of acquittal passed in favour of the accused are well settled by catena of judgments. The difficulty, however, arises at times about the application of the said principles. It is true that there is a statutory prohibition contained in sub-section (3) of Section 401 of Criminal Procedure Code from converting a finding of acquittal into one of conviction and what is prohibited cannot be done indirectly as well. The question, however, is has High Court indirectly done what is prohibited.

4. Sections 397 to 401 of the Code are group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal out at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice.

5. More than half a century ago, in D. Stephens vs. Nosibolla (1951 SCR 284 = AIR 1951 SC 196), this Court held that revisional jurisdiction when it is invoked against an order of acquittal by a private complainant is not to be lightly exercised, it could be exercised only in exceptional cases to correct a manifest illegality or to prevent a gross miscarriage of justice and not to be ordinarily used merely for the reason that the trial court has misappreciated the evidence on record.

6. In K. Chinnaswamy Reddy vs. State of Andhra Pradesh & Anr. (1963 (3) SCR 412 = AIR 1962 SC 1788) a note of caution was appended so that the High Court does not convert a finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot directly convert a finding of acquittal into a finding of conviction in view of specific statutory prohibition. While noticing that it is not possible to lay down the criteria for determining exceptional cases which would cover all contingencies for exercise of revisional power, some cases by way illustration were mentioned wherein the High Court would be justified in interfering with the finding of acquittal in revision. The High Court w