ORDER A.H. Khan, J. 1. The City Magistrate, Lashkar, acquitted Mohammad Khan and Nanakchand of charges of theft and abatement of theft. The complainant Phoolchand has filed this application for grant of special leave to appeal from the order of acquittal under Section 417 (3) of the Criminal Procedure Code. 2. The short facts of the case are that the complainant has a flour mill, where Mohammad Khan worked as his servant. The other accused Nanakchand lived in the upper storey of the building where the flour mill was It is said that on the night in between 25th and 26th of March 1956, two big bags and 4 small bags which had marks of 'X' on them were stolen from the flour mill. The contents of the bags was eleven and half maunds of wheat. It is alleged that at the instance of Mohammad Khan wheat and the bags were recovered from the house of his father. The trial Court has acquitted Mohammad Khan on two grounds. 3. First, that at the time when Mohammad Khan is alleged to have given information with regard to the discovery of the stolen goods, has was not in the custody of the Police. Mahendra Singh S.I. (P.W. 10) in his cross-examination has clearly stated it, though in order to improve his position he has in his re-examination gone back upon his statement. The trial Court has held that Mohammad Khan was not in custody first, because Mahendra Singh has stated so, and secondly, because when he was confronted with the case-diary he admitted that the time of arrest was not entered in it. The short question therefore is: how far information given by a person not in the custody of the Police with regard to the recovery of stolen goods can be regarded as evidence under Section 27 of the Evidence Act ? Having regard to the plain language of Section 27 of the Evidence Act, there is no doubt that Section 27 does not apply to information from a person who is not in Police custody. Having regard to the plain language of Section 27 of the Evidence Act, there is no doubt that Section 27 does not apply to information from a person who is not in Police custody. This point has been discussed in 6 Allahabad 509 in which Oldfield J. had observed that "the operation of the proviso (to Sec. 27 of the Evidence Act) is restricted to information from an accused person in custody of the Police and does not apply to information from accused person not in custody of Police." 4. I am quite clear in my mind that in order to bring the evidence of discovery within the scope of Section 57, it is necessary that the party making statement should be both an accused person and he must be in the custody of the police at the time of making statement. In this view of the matter, I think the learned trial Court has rightly rejected the evidence of discovery. Moreover the wheat was recovered not from the house of the accused but from the house of his father, Gulab Khan who lives in a different house. Gulab Khan has stated that he had collected the wheat for celebrating the marriage of his daughter. 5. Another ground on which the acquittal of accused rests is that by the side of wheat which was found lying in heap on the ground, the bags were also there but they did not bear the mark 'X' as alleged by the complainant. Both the witnesses of recovery (Fida Hussain P.W. 7 and San Singh P. W. 11) have deposed that there was no mark of 'X' on the bags that were recovered. 6. In these circumstances I agree with the inclusion arrived at by the learned trial Court. In an appeal against acquittal their Lordships of the Supreme Court in Aher Raja Khima vs. State of Saurastra A.I.R. 1956 S.C. 217) have observed that in an appeal against acquittal it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial Court was wrong and that if the trial Court takes a reasonable view of the facts of the case, interference under Sec. 417 is not justified. 7. 7. With regard to the other accused Nanakchand I think there is not an iota of evidence to connect him with the offence. In fact it was Nanakchand who is said to have given information to the complainant regarding the alleged theft. If he had been remotely connected with the offence, he would have certainly kept himself aloof from it. 8. For reasons stated above the application for leave to appeal is dismissed. Application dismissed.