JUDGMENT

Agarwal, J - This is a reference by the District Magistrate of Fyzabad recommending that, an order of acquittal passed by a Magistrate, first class of his district be set aside and the case be remanded for a de novo trial. Ram Deo alias Sadho was tried under Section 19, Arms Act, by Mr. S.K. Hyder, a First Class Magistrate. The prosecution case is that a Sub-Inspector of Police searched the house of Ram Deo and a spear was recovered. The Sub-Inspector who made the search and three witnesses mentioned in the search list, Lalji Sahai, Tika and Ram Anand were produced. The learned Magistrate was of opinion that Lalji, Ram Anand and Tika had signed the statement recorded by Lalji on the search list that the spear was recovered from the house of Ram Deo and that Ram Deo and his wife were in the house at the time of the search. He was of opinion that the recording of this statement made the evidence of those three witnesses inadmissible and there was no other evidence of recovery. He therefore acquitted the accused. The District Magistrate was of opinion that the note recorded by Lalji was not a statement made to the Sub-Inspector and therefore it did not contravene the provisions of Section 162, Criminal P.C. He was also of opinion that the writing if it was a statement at all was of Lalji alone and not of the other two witnesses Ram Anand and Tika.

2. The learned Counsel appearing on behalf of Ram Deo took three preliminary objections to this reference. The first objection was that the reference could not be made by the District Magistrate against an acquittal made by a Magistrate of the first class. After hearing the learned Government Advocate he withdrew this objection. The other objection was that the remedy of the District Magistrate was to move the Local Government to appeal and he had no right to take up the matter in revision. Under Section 439(5), Criminal P.C., where an appeal lies and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of a party who could have appealed. Under Section 417, Criminal P.C., an appeal can be made only by the Local Government. The District Magistrate in this case was moved by the prosecuting inspector. I think there is no legal bar to the entertainment of this revision. Even if the District Magistrate could not make this revision, I can interfere as the matter has been brought to my knowledge. Under Section 439, Criminal P.C., a High Court can interfere when it itself calls for the record or where the matter has been reported for orders or where it otherwise comes to its knowledge. Reliance is placed on certain cases to show that the High Court should not interfere in the case of acquittal where the Local Government has not appealed. The first case cited is In the matter of Sheikh Aminuddin, (02) 24 All. 346. It was held in that case that where the Local Government did not prefer an appeal, the High Court will not exercise its power of revision as a general rule. This is no authority that a High Court can never interfere in revision with a case of acquittal unless there is an appeal by the Local Government. The other case cited is Emperor v. Madar Bakhsh, (02) 25 All. 128. In that case too the High Court did not think it proper to interfere on its revisional side in the circumstances of that particular case. The same view was taken in Emperor v. Achhar Singh, A.I.R. 1924 Lah. 451. I think the High Court will not ordinarily interfere in cases of acquittal but there is no legal bar if a proper case comes before it. The third objection taken by the learned Counsel for Ram Deo is that the District Magistrate before referring the matter to this Court did not issue any notice to him. There is no provision in law for the issue of such notice. The District Magistrate or the Sessions Judge simply makes a recommendation to this Court and the final orders are passed by it. The accused cannot be prejudiced because before the final orders are passed this