riminal Apeal No 6 of 1960
Appeal by special leave from the judgment and order dated July 1 1959 of the Andhra Pradesh High Court in Cr
Revision Case No 403 of 1958 and Criminal Revision Petn
No 337 of 1957
P Ram Reddy for the appellant
KR Choudhuri and P D M for respondent No 1
K R Chaudhuri for respondent No 2 1962
July 25
The Judgment of the Court was delivered by WANCHOO J
This is an appeal by special leave against the judgment of the Andhra Pradesh High Court
The appellant was convicted under section 411 of the Indian Penal Code by the Assistant Sessions Judge of Kurnool
Along with him another person Hussain Saheb was also tried and was convicted under so 457 and 380 of the Indian Penal Code
The case for the prosecution briefly was that the house of Rahayya in Dudyia was burgied on the night of April 20 1957
Ramayya and his wife were sleeping outside and on waking in the morning they found that the house had been burgled and valuable property stolen
The matter was reported to the police and during the course of investigation the police recovered 17 ornaments on the information given by the appellant
The other accused had also given information on the basis of which another stolen ornament was recovered
The Assistant Sessions Judge on a consideration of the evidence came to the conclusion that the other accused had actually committed house breaking and had removed ornaments from the house of Ramayya and had handed over 17 ornaments out 415 of that property to the appellant
He also came to the conclusion that the seventeen ornaments recovered at the instance of the appellant were in his possession and he therefore found him guilty under section 411 of the Indian Penal Code
The appellant and the other accused went in appeal to the Sessions Judge
The Sessions Judge held that the appellant had not been proved to be in possession of the seventeen ornaments which were recovered at his instance from a garden
The statement of the appellant in this respect was that he would show the place where he had hidden them the ornaments
Thereafter he went to the garden and dug out two bundles containing the seventeen ornaments from there
The Sessions Judge held that the recovery of ornaments from the garden at the instance of the appellant was proved but he further held that that part of the statement of the appellant where he said that he had hidden the ornaments was not admissible in evidence
Therefore he took the view that as the ornaments were recovered from a place which was accessible to all and sundry and there was no other evidence to show that the appellant had hidden them it could not be held that the ornaments were in the appellant s possession
He therefore gave the benefit of doubt to the appellant and ordered his acquittal
He also acquitted the other accused at whose instance one of the stolen ornaments was recovered
This accused had stated that he given the ornaments to Bada Sab P W 5 and took the police party to Bada Sab and asked him to return the ornaments which Bada Sab did
The Sessions Judge however on a consideration of the evidence against the other accused thought the case against him was also doubtful and ordered his acquittal though he ordered the return of ornaments to Ramayya
This was followed by a revision by Ramayya against the appellant and the other accused
The 416 High Court has allowed the revision and directed that the matter should go back to the Sessions Judge so that the accused should be re tried on the charges on which they had been brought to trial on the former occasion
It is against this order of the High Court directing retrial that the present appeal by special leave is directed
It may be mentioned however that only Chinnaswamy Reddy has appealed while the other accused has not appealed against the order of the High Court
The main contention of the appellant before us is that this was a revision by a private party
There were no exceptional circumstances in this case which would justify the High Court in interfering with an order of acquittal at the instance of a private party
Further it is urged that a 439 4 of the Code of Criminal Procedure specifically forbids the High Court from converting a finding of acquittal into one of conviction and that a reading of the judgment of the High Court shows that by the indirect method of retrial the High Court has practically directed the Sessions Court to convict the appellant and thus indirectly converted finding of acquittal into one of conviction through it has not been done and could not be done directly
The extent of the jurisdiction of the High Court in the matter of interfering in revision against an order of acquittal has been considered by this Court on a number of occasions
In D Stephens vs Nosibolla 1 this Court observed The revisional jurisdiction conferred on the High Court under section 439 of the Code of Criminal Procedure is not to be lightly exer cised when it in invoked by a private comp lainant against an order of acquittal against which the Government has a right of appeal under a 417
It could be exercised only 1  417 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
This jurisdiction is not ordinarily invoked or used merely because the lower Court has taken a wrong view of the law or misappreciated the evidence on the record Again in Logendranath Jha vs Shri Polailal Biswas1 this Court observed Though sub section
1 of section 439 of the Criminal Procedure Code authorises the High Court to exercise in its discretion any of the powers conferred on a court of appeal by section 423 yet sub a
4 specifically excludes the power to  convert a finding of acquittal into one of conviction
This does not mean that in dealing with a revision petition by a private party against an order of acquittal the High Court can in the absence of any error on a point of law reappraise the evidence and reverse the findings of facts on which the acquittal was based provided only it stops short of finding the accused guilty and passing sentence on him by ordering a re trial
 These two cases clearly lay down the limits of the High Court s jurisdiction to interfere with an order of acquittal in revision in particular Logendranath Jha s case 1 stresses that it is not open to a High Court to convert a finding of acquittal into one of conviction in view of the provisions of section 439 4 and that the High Court cannot do this even indirectly by ordering re trial
What had happened in that case was that the High Court reversed pure findings of facts based on the trial court s appreciation of evidence but formally 1  418 complied with sub a
4 by directing only a retrial of the appellants without convicting them and warned that the court retrying the case should not be influenced by any expression of opinion contained in the judgment of the High Court
In that connection this Court observed that there could be little doubt that the dice was loaded against the appellants of that case and it might prove difficult for any subordinate judicial officer dealing with the case to put aside altogether the strong views expressed in the judgment as to the credibility of the prosecution witnesses and the circumstances of the case in general
It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties though the State may not have thought fit to appeal but this jurisdiction should in our opinion be exercised by the High Court only in exceptional cases when there is some glaring defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice
Sub section 4 of a 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more incumbent on the High Court to see that it does not convert the finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot itself directly convert a finding of acquittal into a finding of conviction
This places limitations on the power of the High Court to set aside a finding of acquittal in revision and it is only in exceptional cases that this power should be exercised
It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies
We may however indicate some cases of this kind which would in our opinion justify the High Court in interfering with a finding of acquittal in revision
These cases 419 may be where the trial court has no jurisdiction to try the case but has still acquitted the accused or where the trial court has wrongly shut out evidence which the prosecution wished to produce or where the appeal court has wrongly held evidencewhich was admitted by the trial court to be inadmissible or where material evidence has been overlooked either by the trial court or by the appeal court or where the acquittal is based on a compounding of the offence which is invalid under the law
These and other cases of similar nature can properly be held to be cases of exceptional nature where the High Court can justifiably interfere with an order of acquittal and in such a case it is obvious that it cannot be said that the High Court was doing indirectly what it could not do directly in view of the provisions of a 439 4
We have therefore to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles
A perusal of the judgment of the High Court shows that the High Court has gone into the evidence in great detail so far as the case against the appellant was concerned
In our opinion the High Court should not have dealt with evidence in such detail when it was going to order a retrial for such detailed consideration of evidence as pointed out in Logendranath s case 1 amounts to loading the dice against the appellant when the case goes back for retrial
If the matter stood at this only we would have no hesitation in setting aside the order of the High Court directing a retrial but there is one important circumstance in this case to which the High Court has adverted in passing which in our opinion was sufficient to enable the High Court to set aside the acquittal in this case
It would then have been unnecessary to consider the evidence in that detail in which the High Court has gone into it and thus load the 1 1951 SCR676
420 dice against the appellant when the case goes back for retrial
That circumstance is that the Assistant Sessions Judge had admitted in evidence that part of the statement of the appellant in which he stated that he would show the place where he had hidden the ornaments and relying on it he held that the appellant was in possession of the seventeen ornaments he had dug out from the garden which he owned along with others
The Sessions Judge however held that that part of the statement of the appellant where he stated that he had hidden the ornaments was inadmissible in evidence
The same applies to the case against the other accused who had stated that he had given one ornament to Bada Sab and would get it recovered from him
Though the Sessions Judge has not in specific trems ruled out that part of the other accused s statement where he said that he had given the ornament to Bada Sab he did not consistently with what be said with respect to the appellant attach importance to this statement of the other accused
If therefore this part of the statement of the appellant and the other accused which led to discovery of ornaments is admissible it must be held that the appeal court wrongly ruled out evidence which was admissible
In these circumstances the case would clearly be covered by the principles we have set out above in as much as relevant evidence was ruled out as inadmissible and the High Court would be justified in interfering with the order of acquittal so that the evidence may be reappraised after taking into account the evidence which was wrongly ruled out as inadmissible
It seems that the High Court was conscious of this aspect of the matter for it says in one part of the judgment that the only possible inference that could be drawn was that the appellant was in possession of stolen goods before they were put in that secret spot as admitted by the appellant in his statement part of which 421 is admissible under section 27 of the Indian Evidence Act
If the High Court had confined itself only to the admissibility of this part of the statement it would have been justified in interfering with the order of acquittal
Unfortunately the High Court went further and appraised the evidence also which it should not have done as held by this Court in Logendranath s case
However if admissible evidence was ruled out and was not taken into consideration that would in our opinion be a ground for interfering with the order of acquittal in revision
Let us then turn to the question whether the statement of the appellant to the effect that he had hidden them the ornaments and would point out the place where they were is wholly admissible in evidence under section 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments
The Sessions Judge in this connection relied on Pulukuri Kotayya vs King Emperor 2 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee
In that case the Judicial Committee considered section 27 of the Indian Evidence Act which is in these terms  Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer so much of such information whether it amounts to a confession or not as relates distinctly to the fact thereby discovered may be proved
 This section is an exception to sections 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in 1  2 1946 LR 74 IA 65 422 police custody unless it is made in immediate presence of a magistrate
Section 27 allows that part of the statement made by the accused to the police whether it amounts to a confession or not which relates distinctly to the fact thereby discovered to be proved
Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under section 87
The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under a 17 and laid stress on the words so much of such information as relates distinctly to the fact thereby discovered in that connection
It held that the extent of the information admissible must depend on the exact nature of the discovered to which such information is required to relate
It was further pointed out that the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this and the information given must relate distinctly to this fact
 It was further observed
that Information as to past user or the past history of the object produced is not related to its discovery in the setting in which it is discovered
 This was exemplified further by the Judicial Committee by observing Information supplied by a person in custody that I will produce a knife concealed in the roof of my house  leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence
 the fact discovered is very relevant
If however to the statement the words be added with which 423 I stabbed A  these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant
 If we may respectfully say so this case clearly brings out what part of the statement is admissible under a 27
It is only that part which distinctly relates to the discovery which is admissible but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature
Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole whether it be in the nature of confession or not
Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments
The Sessions Judge has held that part of this statement which is to the effect where he had hidden them is not admissible
It is clear that if that part of the statement is excised the remaining statement namely that he would show the place would be completely meaningless
The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under section 27 of the Indian Evidence Act
The words where he had hidden them are not on a par with the words with which I stabbed the deceased in the example given in the judgment of the Judicial Committee
These words namely where he had hidden them have nothing to do with the past history of the crime and axe distinctly related to the actual discovery that took place by virtue of that statement
It is however urged that in a case where the offence consists of possession even the words where he had hidden them  would be inadmissible as they would amount to an admission by the accused that he was in possession
There are in our opinion two answers to this argument
In the first place 424 s 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not
In the second place these words by themselves though they may show possession of the appellants would not prove the offence for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime i e in this case the prosecution will have to show that they are stolen property
We are therefore of opinion that the entire statement of the appellant 2 as well as of the other accused Who stated that he had given the ornament to Bada Sab and would have it recovered from him would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it
Therefore as relevant and admissible evidence was ruled out by
the Sessions Judge this is fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence
The next question is what order should be passed in a case like the present
The High Court also considered this aspect of the matter
Two contingencies arise in such a case
In the first place there may be an acquittal by the trial court
In such a case if the High Court is justified on principles we have enunciated above to interfere with the order of acquittal in revision the only course open to it is to set aside the acquittal and send the case back to the trial court or retrial
But there may be another type of case namely where the trial court has convicted the accused while the appeal court has acquitted him
In such a case if the conclusion of the High Court is that the order of the appeal court must be set aside the question is whether the appeal court should be 425 ordered to re hear the appeal after admitting the statement it had ruled out or whether there should K necessarily be a retrial
So far asthis is concerned we are of opinion that it in open to the High Court to take either of the two courses
It may order a retrial or it may order the appeal court to re hear the appeal
It will depend upon the facts of each case whether the High Court would order the appeal court to re hear the appeal or would order a retrial by the trial court
Where as in this case the entire evidence is there and it was the appeal court which ruled out the evidence that had been admitted by the trial court the proper course in our opinion is to send back the appeal for rehearing to the appeal court
In such a case the order of the trial court would stand subject to the decision of the appeal court on re hearing
In the present case it is not disputed that the entire evidence has been led and the only defect is that the appeal court wrongly ruled out evidence which was admitted by the trial court
In the circumstances we are of opinion that the proper course is to direct the appeal court to re hear the appeal and either maintain the conviction after taking into consideration the evidence which was ruled out by it previously or to acquit the accused if that is the just course to take
We should like to add that the appeal court when it re hears the appeal should not be influenced by any observations of the High Court on the appreciation of the evidence and should bring to bear its own mind on the evidence after taking into consideration that part of the evidence which was considered inadmissible previously by it
We therefore allow the appeal subject to the modification indicated above
This leaves the case of the other accused
We are of opinion that as we are directing the appeal court to re hear the appeal with respect to the appellant it is only proper that the order relating to the 426 other accused should also be set aside and his appeal should also be re heard in the manner indicated above
We therefore set aside the order of the High Court with respect to the retrial of the other accused and direct that his appeal will also be re heard along with the appeal of the appellant
Appeal allowed


Summary:
The appellant tried with another was convicted under section 411 Indian Penal Code while the other was convicted under sections 457 and 380 of the Code by the Assistant Sessions judge
The appellant had stated to the police during investigation that she would show the place where he had hidden them the ornaments and thereafter went to the garden and dug out two bundles containing the ornaments
The other accused person had also similarly stated that he had given the 413 ornaments to one Bada Sab took the police party to Bada Sab and asked him to return the ornament which he did
The Sessions Judge on appeal took the view that that part of the statement of the appellant where he said that he had hidden the ornaments was not admissible in evidence and in the absence of any other evidence possession of the ornament could not be said to have been proved
He therefore held that the appellant was entitled to the benefit of doubt and acquitted him
He also took a similar view with regard to the other accused person and acquitted him
The order of acquittal was set aside by the High Court in revision under section 439 of the Code of Criminal Procedure and a retrial was directed
It was against the order of retrial that the appeal was directed
Held that it was open to a High Court in revision and at the instance of a private party to set aside an order of acquittal though the State might not have appealed
But such jurisdiction should be exercised only in exceptional cases as where a glaring defect in the procedure or a manifest error of law leading to a flagrant miscarriage of justice has taken place
When section 4394 of the Code forbids the High Court from converting a finding of acquittal into one of conviction it is not proper that the High Court should do the same indirectly by ordering a retrial
It was not possible to lay down the criteria for by which to judge such exceptional cases
It was however clear that the High Court would be justified in interfering in cases such as 1 where the trial court had wrongly shut out evidence sought to be adduced by the prosecution 2 where the appeal court had wrongly held evidence admitted by the trial court to be inadmissible 3 where material evidence has been overlooked either by the trial court or the court of appeal or 4 where the acquittal was based on a compounding of the offence not permitted by law and cases similar to the above
D Stephens vs Nosibolla  and Logendra nath Jha vs Shri Polailal Biswas   referred to
There could be no doubt in the instant case that the entire statements of the appellant as well as of the other accused person would be admissible tinder section 27 of the Indian Evidence Act and the Sessions judge was in error in ruling out parts of them and the High Court was clearly justified in setting aside the acquittal in revision
Pulukuri Kotayya vs King Emperor 1946 LR 74 IA 65 referred to 414