Invoking of the provisions of section 202.

This is a petition torevise the judgment of the Sessions Judge, Visakhapatnam allowing an appeal filed by the petitioner against his conviction and sentence for an offence punishable under section 406, Indian Penal Code, but ordering at the same time a further enquiry by a Magistrate into the case.

The case was the result of a private complaint made on 1st March, 1955, by P.W. 1 Appamma to the Sub-Divisional Magistrate, Srikakulam. Her story so far as it is now material, is that she lent the petitioner four of her gold jewels weighing about 20 tolas for being worn by his daughter during a function and that when she asked for the return of the jewels a few days later, the petitioner flatly denied having taken them. P.Ws. 2 and 3 who reside in the village spoke to have been fortuitously present at the time of the entrustment of the jewels and to having accompanied P.W. 1 when she unsuccessfully demanded their return. The petitioner’s plea was that a false case was foisted against him on account of enmity. He examined six witnesses in defence. Apart from the oral evidence of P.W. 1, the complainant, and of P.Ws. 2 and 3 who, as already indicated, professed to have been conveniently present by chance at the time of entrustment of the jewels, there was nothing to support the complaint. Even in this oral evidence, there were numerous discrepancies. There were varying versions as to the date of the entrustment, for instance, it was stated to be 8th February, 1955, in the complaint, a Wednesday corresponding to 22nd February, 1955, in the sworn statement, a Friday corresponding to about 23rd February, 1955, by P.W. 1 in the witness-box, a Friday in March, 1955, in P.W. 2’s evidence and a Friday prior to Sankaranti in January, 1955, in P.W. 3’s evidence. The discrepancies were important, because any delay in the complaint would naturally be expected to be accounted for. There were equally glaring discrepancies with regard to the date on which P.W. 1 was said to have demanded the return of the jewels. The trial Magistrate noticed these discrepancies, but brushed them aside by a special pleading that the complainant’s story was natural, that P.Ws. 1 to 3 were illiterate witnesses wanting in time sense, that he was impressed by their demeanour and that the discrepancies were “of truth and not of falsehood.” He therefore convicted the petitioner under section 406, Indian Penal Code and sentenced him to pay a fine of Rs. 500, out of which Rs. 400 was awarded as compensation to P.W. 1. On appeal, the learned Sessions Judge noticed that the Magistrate had given strained explanations for the defects in the prosecution evidence and agreed with the criticism that the prosecution evidence was unsatisfactory and insufficient to sustain the conviction and sentence. He said

“I find the materials are deficient, truncated and insufficient to come to a conclusion - I hold that the conviction is not justified on the materials on record.”

But he felt that there was a sub-stratum of truth in the complaint and that P.W.1 was handicapped as there was no police investigation, by means of which the lacuna in the evidence such as the non-recovery of the jewels, the management and possession of P.W. 1’s land throwing light on the motive, etc., could have been remedied. He observed that there was need for investigation under section 202, Criminal Procedure Code, allowed the appeal and sent the matter for further enquiry to the District Magistrate, Visakhapatnam.

It is contended in revision that, as a matter of law, the Sessions Judge had no power to order a further inquiry into the case, that he could have ordered a retrial but that on the facts this is not a proper case for retrial. These contentions are well-founded. The powers of an appellate Court in disposing of appeals are set out in section 423, Criminal Procedure Code, the material portion of which reads;

‘The Court may, if it considers that there is no sufficient ground for interfering, dismiss the appe