JUDGMENT Madeley, J. - This is an application in revision filed by Babu and Mullu. An order to show cause u/s 110, Code of Criminal Procedure was passed by Mr. Hardeo Singh, a Magistrate of the first class, Sitapur, against these two persons, and they were subsequently ordered to execute personal bonds of Rs. 200 and to furnish two sureties each in the same amount under that section after evidence had been taken. The case was taken in appeal before the learned Sessions Judge who held that in view of the fact that Appellants had never been convicted of burglary or theft, something more than the evidence of persons who made the criminal reports against Appellants should have been on the file to corroborate the statements of those who made the reports, and further that there should have been more and better evidence of general repute. He, therefore, remanded the case to the trial Court u/s 428, Code of Criminal Procedure for the examination of the investigating officers and corroborative evidence in respect of the six first information reports and further evidence of general repute. The Appellants were to produce any further evidence which they wished. 2. Against this order Babu and Mullu have come in revision, and it is urged on their behalf that the learned Sessions Judge has mistaken the scope of Section 428, Code of Criminal Procedure and has used it for the wrong purpose, viz., to fill in gaps in the prosecution evidence, instead of which, if he was not satisfied with that evidence, he should have allowed the appeal. It must be admitted that the order is of rather an unusual nature, but that does not necessarily mean that it is illegal or improper. 3. The first decision cited by Appellants' learned Counsel is The United Motor Finance Co., AIR 1935 Mad 325 Motor Vehicles kept or used in the Presidency of Madras were liable to taxation and there was a penalty for non-payment of the tax. The applicant in the revision had been convicted and punished for non-payment. In revision Cornish J. held that there was a lacuna in the evidence in so much as there was no evidence on the file to prove that the motor omnibus was kept or used within the Presidency. The applicant in the revision had been convicted and punished for non-payment. In revision Cornish J. held that there was a lacuna in the evidence in so much as there was no evidence on the file to prove that the motor omnibus was kept or used within the Presidency. His Lordships then remarked: "It has been suggested by the learned Advocate General that we should have recouse to Sections 428 and 439, Code of Criminal Procedure and direct that additional evidence be taken. But we think that this power should not be exercised for the purpose of filling a gap in the prosecution case when the necessary evidence was easily available to the prosecutor at the hearing and ought to have been then produced." 4. In the second case In Re: Pujari Hanumanthappa, AIR 1937 Mad 181 the accused was convicted of an offence with respect to illicit "arrack" by a Stationary Sub-Magistrate and appealed to the joint Magistrate. The Joint Magistrate held that the evidence did not establish that the "arrack" was illicit. Proof that the "arrack" was illicit was the essence of the offence. The Joint Magistrate expressed the opinion that it was desirable that there should be a fresh inquiry into the case, Mockett J. in revision held "The object of Section 428, Code of Criminal Procedure is not for the purpose of enabling the prosecution to produce evidence which could easily have been produced at the first trial. It is not to enable the prosecution, having failed once, to have an opportunity of trying the case all over again." In Empress of India v. Fateh (1883) 5 All. 217 Mahmood J. remarked at p. 221, "When persons accused of an offence are committed to the Court of Session under distinctly framed charges and that Court takes all the evidence produced by the prosecution, and that evidence fails to sustain the charge, this Court will not, except in very exceptional circumstances, direct that further inquiry should be made or that additional evidence should be taken. The powers conferred by Section 282, Code of Criminal Procedure (Act X of 1872) are not, in my opinion, intended to be exercised in cases like the present, in which the prosecution having had ample opportunities to produce evidence have done so, and that entire evidence falls short of sustaining the charge." 5. The powers conferred by Section 282, Code of Criminal Procedure (Act X of 1872) are not, in my opinion, intended to be exercised in cases like the present, in which the prosecution having had ample opportunities to produce evidence have done so, and that entire evidence falls short of sustaining the charge." 5. There are, however, cases which express a somewhat different opinion. The most striking is Akhtar Husain v. Emperor AIR 1925 Pat. 526. This case related to illicit possession of cocaine. When the case came in appeal the Sessions Judge found that some of the connecting links to prove the identity of the packet examined by the Chemical Examiner were missing. Considering that additional evidence was necessary on this point, he recorded his reasons and directed the Magistrate to take the necessary further evidence. Two formal witnesses were examined who supplied the links missing in the evidence. Counsel in the revision application before the Patna High Court argued that Section 428 is only to be utilised in a case where there is some evidence upon which the Appellant could be convicted, though that evidence is not satisfactory, and suggested that this is a via media which the Courts in India have worked out for themselves. It may be noticed here that this is exactly the opposite argument to the one put before this Court in which it has been argued that where there is a formal link missing Section 428, Code of Criminal Procedure, can be properly applied but where there is some evidence, but that evidence is not considered sufficiently convincing, the application of Section 428 is out of place. It was, however, held by Macpherson J., "The scope of Section 428 is prima facie not limited by any consideration save that the appellate Court should be of opinion that additional evidence is necessary and should record its reasons. The object of the section is just as much the prevention of the escape of a guilty person through some carelessness or ignorant procedure of the Court, Sub-inspector or the Magistrate, as the vindication of the innocence of the person wrongfully accused where the same carelessness or ignorance has omitted to bring on the record circumstances essential to the elucidation of the truth. It is impossible on the plain words of the enactment to differentiate between these two cases. It is impossible on the plain words of the enactment to differentiate between these two cases. It would not be a sound exercise of discretion to do so in the circumstances of India, were justice, when it fails, does so by erroneous acquittal at least as much as by erroneous conviction. In India the onus is placed on the Court not merely to listen to the evidence, but to inquire to the utmost into the truth of the matter, and so to secure justice, Accordingly if any restriction is to be placed upon the power conferred on the appellate Court by Section 428, it certainly cannot be that negligence or inadvertence on the part of the prosecution is to be allowed to effect a miscarriage of justice: on the contrary the enactment, is like the other provisions referred to, directed to the attainment of justice even at a late stage in the proceedings, by the introduction of further materials which the Court judges to be essential to a just decision of the case. The Court of revision will not always interfere with an order of the appellate Court allowing evidence, where it might itself in the exercise of it discretion as the appellate Court, have declined to admit additional evidence. To justify interference in revision the Court must be satisfied that appellate Court committed an error of law which has prejudiced the accused on the merits." 6. In Dulla v. The Crown (1926) 7 Lah 148, Broadway J., while disallowing the reading of the evidence of a co-accused who had been convicted on his own admission and then examined as a witness against the other, remarked at page 151; "Mr. Abdul Aziz next urged that it was not the intention of the Legislature to enable an appellate Court u/s 428, Code of Criminal Procedure, to give the prosecution an opportunity of supplementing their case by the production of fresh evidence of filling up lacunae by those methods. It appears to me that the intention of the Legislature was to empower an appellate Court to see that justice is done between prosecutor and the person prosecuted, and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct finding, it would be justified in taking action under this section." 7. It appears to me that the intention of the Legislature was to empower an appellate Court to see that justice is done between prosecutor and the person prosecuted, and if the appellate Court finds that certain evidence is necessary in order to enable it to give a correct finding, it would be justified in taking action under this section." 7. In In Re: M.P. Narayana Menon, AIR 1925 Mad 106 , certain defence witnesses mentioned by the accused, who was charged u/s 121 of the Indian Penal Code, were not allowed to be produced. 8. In the High Court it was argued that the refusal to summon these witnesses was a material irregularity amounting to an illegality and Counsel claimed a retrial for his client. The High Court offered to call the witnesses u/s 428, Code of Criminal Procedure, but it was argued that it had no jurisdiction to do so, since Section 428, Code of Criminal Procedure only related to prosecution witnesses and to formal proof. It was held that there is no restriction in the wording of the section either as to the nature of the evidence or that it is to be taken for the prosecution only or that-the provisions of the section are only to be invoked when formal proof for the prosecution is necessary. It was also held that the word "necessary" does not import that it is impossible to pronounce judgment without the additional evidence, Chitaley's Commentary on the Code of Criminal Procedure (2nd edition) at page 2341 adds, "There may be many cases where judgment can be pronounced without any additional evidence, but there are cases where it is necessary as a general measure of justice to record additional evidence. "The necessity for taking additional evidence under this section must be determined on the facts of each case. But it has been held that the necessity for additional evidence must be apparent from the record in the case and must not be derived from external information. The discretion vested in the Court of appeal should not be exercised arbitrarily, but only when the interests of justice demand such a procedure. No hard and fast rule can, however, be laid down. The discretion vested in the Court of appeal should not be exercised arbitrarily, but only when the interests of justice demand such a procedure. No hard and fast rule can, however, be laid down. The appellate Court will not exercise the power under this section when there is no evidence at all; but where there is some prima facie evidence bearing upon the guilt or innocence of the accused, the appellate Court may act under this section." 9. I express no opinion about the general remarks on evidence in Section 110 cases made by the learned Sessions Judge. It is, however, clear that he was not quite convinced by the prosecution evidence of which there was a good deal about the general reputation and the actions of the applicants. He ordered the taking of fresh evidence of a nature either to confirm or to rebut the impression produced on his mind. He thought it necessary to have this further evidence on the file and he recorded his reasons before making the order. It is clear from the last three decisions quoted above which are summed up by Chitaley, and which, in my opinion, take the more correct view of the law, that there is no hard and fast rule to fetter his discretion. I am unable to say that that discretion was not properly exercised in the circumstances, and I, therefore, dismiss this application.