The discretionary jurisdiction of the High Court under the Criminal Procedure Code should be exercised in the interest of justice, based on the specific facts and circumstances of each case.

( 1 ) THIS appeal by special leave is directed against judgment of the High court of Sikkim dated 21-2-1991.

( 2 ) SHORN of details, facts giving rise to the filing of this appeal are as follows: on the basis of telephonic information received at Police Station Sadar on 18-7-1986 at about 12. 10 a. m. from Shri K. T. Bhutia, Advocate, a first information report (FIR) came to be registered. The names of the accused were not disclosed in the telephonic message and all that was stated was that "two unknown persons" came to the house of Advocate Smt Manju Sharma at P. N. G. Road and fired shots at her and her husband, who were lying in an injured condition in the house. The telephonic message was received by Shri suresh Pradhan, Night Duty Officer at the police station. The officer in charge of the police station, Shri B. K. Rokha, PW 4 marked the FIR to Sub- inspector D. P. Bhutia for investigation. The victims Shri Prem Pal Singh and smt Manju Sharma, both lawyers, were removed to S. T. N. M. Hospital where they were medically examined and admitted. The appellant was arrested by pw 4 D. P. Bhutia at 12. 40 a. m. from his residence. Both the victims left the hospital on their own and made themselves scarce without informing the police. After investigation, charge-sheet was filed against the appellant for offences under Sections 450/307 IPC. Charge was, however, framed by the trial court against the appellant for an offence under Section 307 IPC only. The prosecution led evidence in support of their case. The prosecution, however, did not produce either of the two victims, Shri Prem Pal Singh or smt Manju Sharma at the trial, because their "whereabouts were not known" and they had left Sikkim.

( 3 ) THE trial court after recording evidence of the prosecution witnesses came to the conclusion that the prosecution had not been able to prove that it was the appellant who had committed the alleged offence. The trial court went on to record that the prosecution had not even been able to show any circumstance in the prosecution evidence against the appellant which could implicate him in the commission of the alleged crime. These findings of the trial court were based on appreciation of evidence led before it. The trial court had noticed that the names of the alleged assailants who were stated to be two in number in the FIR were not disclosed in the FIR and there was no indication about the identity of either of the two assailants in the FIR. In the trial court, Shri D. P. Bhutia, PW 4 admitted in his cross-examination that he had caused the arrest of the appellant at the instance of the Superintendent of police (East) and the District Magistrate (East ). The witness conceded that he had caused arrest of the appellant at the instance of his superiors, though actually he had no clue about the complicity of the appellant in the alleged crime. On appreciation of the evidence, the trial court recorded an order of acquittal. The trial court also noted the submission of the Public Prosecutor that in the absence of the material witnesses, meaning thereby the victims, the prosecution has miserably failed to bring home the charge against the appellant for an offence under Section 307 IPC, but the order of acquittal was not based on this submission of the Public Prosecutor.

( 4 ) THE State did not file any appeal against acquittal of the appellant.

( 5 ) RESPONDENT 1 James Basnett filed a petition in the High Court, which was treated as criminal revision petition in which he asserted that no efforts were made, either by the prosecuting agency or the court to examine the victims and that those two witnesses should be examined and case reopened and a fresh trial conducted. It was asserted that the appellant had been wrongly acquitted on account of the "deliberate" default of the prosecuting agency. The High Court accepted the revision petition and vide order dated 21-2-1991 directed the examination of the victims under Section 540 of the code of Crim