Re : T. v. V. Hameed, Petitioners — 1985 DIGILAW 255 (KER)

Judgment :- This food adulteration case detected on 28-11-1977 even now awaits its final disposal. According to the advocate, who represented the complainant-Food Inspector before me, it was the wealth and influence of the accused which caused all the delays in bringing the offender to justice. Prevention of Food Adulteration Act has been enacted in the discharge of the governmental duty of eradicating adulteration in food materials, which is a menace to public health and welfare. But what we are noticing is alarming increase of the menace. Adulteration is becoming the rule at the hands of rich and influential manufacturers distributors and dealers who do not care much for the health of the nation in the anxiety to enrich themselves by hook or crook. Without efficient and incorruptible machineries for detention, analysis and prosecution, it is impossible to have an effective tackling of the menace. Big manufacturers, distributors and dealers invariably escape the notice of those who are responsible for detection. Generally they proceed only against small retailers and petty traders. Random cases of big guns being caught generally end in acquittal with the blessings of those who are responsible for detection and prosecution by the adoption of several dubious methods. Such methods may be conscious actions or inactions in the matter of observing formalities or giving evidence before court or doing the needful in time. In this case, counsel for the Food Inspector was complaining at the time of arguments that the complainant was not able to prefer an appeal from the order of acquittal entered by the Addl. Sessions Judge, Ernakulam in Crl. A. No. 16/84 only because of the fact that the request for sanction made by the Cochin Corporation was not considered and replied by the Chief Public Analyst, who is the authority competent to accord sanction. If that complaint is correct, the reason is also evident. If so, it is a matter in which the Government will have to make due enquiries and deal with the concerned persons properly. Otherwise eradication of such a menace will be practically out of question. 2. Accused in this case is the proprietor of "Cochin Refreshment House", a flourishing hotel run in the heart of Ernakulam situated by the side of Shanmugham Road. Complainant says that he is very rich and influential. Sample purchased from him by PW. 1, Food Inspector on 28-11-1977 was ice cream. Ext. 2. Accused in this case is the proprietor of "Cochin Refreshment House", a flourishing hotel run in the heart of Ernakulam situated by the side of Shanmugham Road. Complainant says that he is very rich and influential. Sample purchased from him by PW. 1, Food Inspector on 28-11-1977 was ice cream. Ext. P9 report of the Public Analyst proved that it is adulterated. After prosecution, on the application of the accused one sample with the Local (Health) Authority was sent to the Central Food Laboratory and Ext. P11 certificate of the Director also established that the sample is adulterated. PW. 1 has generally spoken to the observance of all formalities. P.W. 2 is an independent witnesses, who was present at the time of sampling. P.W. 3 is the Public Analyst. 3. The only contentions raised by the appellant before the Chief Judicial Magistrate, Ernakulam in C.C. No. 21/78 were that the sampling was not proper and Exts. P9 and P11 reports are not correct. The Magistrate found that ice cream purchased by PW. 1 was not a representative sample since the purchase was not from a portion vertically cut and stirred properly to ensure homogeneity and hence sampling was not proper. This opinion was further confirmed by him on the basis of the divergent opinion contained in Exts. P9 and P11. As a result the accused was acquitted. 4. The Food Inspector has taken the matter, in Crl.A. No. 379/80, before this Court. By an elaborate judgment the appeal was allowed by Bhat, J. in the decision reported in Food Inspector v. Hameed, 1983 Ker LT 901 : (1983 Cri LJ NOC 224). The grounds on which the Magistrate proceeded to acquit the accused were found to be wholly untenable and perverse. Acquittal was set aside and the case was remanded. All the factual and legal questions were considered in the judgment in elaborate details and all the relevant decisions were also considered. Necessary guidelines were given to the Magistrate for the appreciation of evidence in order to enter findings. The portion from the judgment relevant for consideration reads thus : "Undoubtedly, it would be useful if the Food Inspector speaks to the details of the various steps taken to show that he had acted in conformity with the Act and the Rules. Necessary guidelines were given to the Magistrate for the appreciation of evidence in order to enter findings. The portion from the judgment relevant for consideration reads thus : "Undoubtedly, it would be useful if the Food Inspector speaks to the details of the various steps taken to show that he had acted in conformity with the Act and the Rules. But where he gives evidence only in a general way indicating the steps taken by him, but without specifically referring to the details, that cannot straightway lead to acquittal of the accused. His evidence may be corroborated by the mahazar and the other evidence and supported by the contents of the report of the Public Analyst unless the same is challenged in cross-examination or in some other way known to law. Where the accused refrains from cross-examining the Food Inspector in regard to these details and fails to suggest either non-compliance with any particular details of a rule or prejudice having been suffered by the accused, he certainly runs a risk. In the absence of any inhibiting factor it is open to the Court to presume that the official act has been regularly performed where it is shown that the official act has been performed. It is also open to the accused to show that he has suffered prejudice on account of the action or inaction of the Food Inspector, in which case, the Court is free to draw necessary inferences." 5. After remand, the accused seems to have raised three contentions before the Chief Judicial Magistrate. They are (1) vessels and other utensils used by the Food Inspector for sampling were not sterilised (2) the provisions of Ss. 13(2) and 13(2A) were not complied with by the Local (Health) Authority, and (3) the Director of Central Food Laboratory did not comply with the provisions of S. 13(2B). The Chief Judicial Magistrate negatived all these contentions. As a result the accused was convicted and sentenced to simple imprisonment for six months and to pay a fine of Rs. 1,000/- with a default sentence of simple imprisonment for one month. He filed Crl.A. No. 16/84 before the Sessions Court, Ernakulam. The appeal was heard and disposed of by Shri V. K. Bhaskaran, Addl. Sessions Judge, Ernakulam. As a result the accused was convicted and sentenced to simple imprisonment for six months and to pay a fine of Rs. 1,000/- with a default sentence of simple imprisonment for one month. He filed Crl.A. No. 16/84 before the Sessions Court, Ernakulam. The appeal was heard and disposed of by Shri V. K. Bhaskaran, Addl. Sessions Judge, Ernakulam. The contentions taken by the accused before him were (1) The Director of Central Food Laboratory has not complied with the provisions of S. 13(2B), (2) the Food Inspector has violated the provisions of R. 17(b) and (3) the Food Inspector failed to comply with the provisions of S. 11(1)(c)(i). By judgment dated 31-3-1984, the Sessions Judge negatived the first two contentions. But he accepted that last contention and acquitted the accused on that ground alone. The complainant did not file an appeal. In para. 1 of this order, I have mentioned the reasons given by the advocate why an appeal could not be filed. This case came up before me only because it was taken on suo motu revision by this Court. Notice was issued and I have heard both sides at length. 6. The contention based on S. 11(1)(c)(i) was not one which was taken before the Chief Judicial Magistrate on the two available occasions or before this Court in Crl. A. No. 379 to 1980 : (1983 Cri LJ NOC 224) (Ker) or before the Sessions Judge himself in the appeal memorandum. Therefore that contention could have been taken only as a desperate attempt and as a last resort at the time of arguments before the Sessions Judge when the accused thought that he was losing grip on all other contentions. It is evident that the existence or availability of such a contention was not even known to the accused or his advocate till that stage. 7. Section 11(1)(c)(i) only says that when the Food Inspector takes sample of food for analysis, he shall send one of the parts of the sample for analysis to the public analyst under intimation to the local (Health) Authority. In order to accept this contention the Sessions Judge seems to have strained himself too much to consider various provision of the Act and Rules in an attempt to make out that this is a vital mandatory provision, the absence of proof of compliance of which must necessarily end in acquittal. In order to accept this contention the Sessions Judge seems to have strained himself too much to consider various provision of the Act and Rules in an attempt to make out that this is a vital mandatory provision, the absence of proof of compliance of which must necessarily end in acquittal. For that purpose he utilised a lot of judicial time and energy and covered more than five pages of typed matter. To fortify his conclusion on the basis of such a resort he was able to find support from a single bench decision of the Bombay High Court reported in State of Maharashtra v. Raghunath, 1984 Cri LJ 198. In that decision the judge who decided the case himself regretted his inability to find out any precedent supporting his view. The only reason mentioned in support of the view that S. 11(1)(c)(i) is mandatory and its non-compliance is fatal to the prosecution is that a conviction in a food adulteration case must necessarily result in at least a serious minimum sentence of imprisonment for six months and a fine of Rs. 1,000/-. Referring to the gravity of the sentence the judgment says "If this is the position of law, then it will be reasonable to assume that the legislature expected the officer concerned to comply with each of the formalities prescribed by the statute very strictly. This necessarily means that the provision is mandatory in character." Then the decision went on to say: "It cannot be lightly assumed that the legislature wanted the citizen to be sentenced to stiff penalty in a light-hearted manner. If such stiff penalty is the ultimate result the manner in which the stiff penalty should be imposed has to be prescribed and once the legislature prescribes such manner the same has got to be observed strictly by the person who has been entrusted with the duty of implementation of the law by paying attention to each of the mandatory requirements prescribed by the law. I do not think that the Court would be justified in taking the view that the legislature has made the provision for intimation to Local Authority of certain facts as an empty formality. The Act provides that before invoking the penal provisions, certain requirements have got to be complied with. I do not think that the Court would be justified in taking the view that the legislature has made the provision for intimation to Local Authority of certain facts as an empty formality. The Act provides that before invoking the penal provisions, certain requirements have got to be complied with. After compliance with those requirements the citizen may be sent to jail; but it cannot have been intended by the legislature that similar result would not follow even if the requirement was not complied with by the authorities concerned." 8. If that view is accepted each and every provision in the Prevention of Food Adulteration Act and Rules will have to be treated as mandatory and absence of proof of observance must be found fatal. But unfortunately that view is not favoured by this Court and the Supreme Court in a catena of decisions. It is true that there is no other available decision concerning S. 11(1)(c)(i) of the Prevention of Food Adulteration Act, presumably for the reason that nobody must have thought it fit to raise such a hyper technical contention. Decided cases show that various provisions of the Prevention of Food Adulteration Act and Rules are only directory in nature and their non-observance or absence of strict or timely compliance will not be fatal. Guidelines to decide whether a particular provision is mandatory or directory were also given by various decisions. The appellate decision in this case referred to by me earlier has also given such guidelines. It is not necessary for me to extract all those decisions here. In my opinion, the provision of S. 11(1)(c)(i) is evidently only a directory one. There are a host of decisions which say that the provisions of S. 10(7) are only directory and that the non-observance of those provisions will not be fatal. R. 9A of the Prevention of Food Adulteration Rules made on the basis of S. 13(2) directing the Local (Health) Authority to send copy of the report of the public analyst to the accused was considered in the decision in Tulsiram v. State of M.P., AIR 1985 SC 299 : (1984 Cri LJ 1731) and it was found to be not a mandatory provision. It was held therein : "The expression "immediately" in R. 9A is intended to convey a sense of continuity rather than urgency. It was held therein : "The expression "immediately" in R. 9A is intended to convey a sense of continuity rather than urgency. What must be done is to forward the report to the person from whom the sample was taken at the earliest opportunity, so as to facilitate the exercise of the statutory right under S. 13(2) in good and sufficient time before the prosecution commences leading evidence. Non-compliance with R. 9A is not fatal. It is a question of prejudice." Compliance of the rule is having some bearing on the right of the accused to have a second opinion from the Central Food Laboratory. Even in such a case it was held that proof of prejudice is require to make absence of strict compliance fatal. Compliance of S. 13(2B) came up for consideration before a single Bench of this Court in the decision in Mani v. Food Inspector, 1984 Ker LJ 752. What was observed therein is : "When the accused exercise his right under S. 13(2) for a fresh analysis by the Central Food Laboratory, he has himself a duty to alert the Court of it responsibilities to satisfy whether there was any tampering of the packet and seal of the sample and to insist the Court to make record of its verification. The accused cannot at a larger stage of the trial, or in appeal or revision contend that there is no record by the Court of the purpose. A technical lapse of Court, even if there is any, of a formal record of verification of the sample by the Court, cannot be taken advantage of by a party who never objected to the defect of the packet of the sample before it was despatched and who waited till the receipt of the report by the Central Laboratory. If the Central Food Laboratory obtained sample with seals intact and unbroken, and the letter which was sent by the Court also referred to the details on the samples packet, regarding the seal etc., it can safely be concluded that the endorsement made on the application by the accused was by the Court and that Court had applied its mind as contemplated under S. 13(2B) of the Act. There is thus no violation of S. 13(2B) of the Act either." It is unnecessary to quote further instances. 9. There is thus no violation of S. 13(2B) of the Act either." It is unnecessary to quote further instances. 9. Section 11(1)(c)(i) only says that when the sample is sent to the public analyst, the Food Inspector has to do so under intimation to the Local (Health) Authority. It has to be noted that under S. 11(1)(c)(i) the Food Inspector has to send the other two samples to the Local (Health) Authority. That is for the purposes of Ss. 13(2A) and 13(2E). Local (Health) Authority is an officer who is to associate himself with the sample under the provision of Ss. 13(2A) and 13(2E). He has to forward a copy of the report of the Public Analyst to the accused and produce the sample before Court when requested for by Court and he is also having the right under S. 13(2E). In this case there is no dispute that R. 17(b) has not been complied with. Admittedly, the two other samples were sent to the Local (Health) Authority. The report of the public analyst was actually received by the Local (Health) Authority and a copy of the same has been forwarded by him to the accused. After prosecution, on the application of the accused, one of the samples with the Local (Health) Authority was produced before Court and it was sent for analysis to the Central Food Laboratory. Both the public analyst and the Director of Central Food Laboratory found the concerned samples to be intact and fit for analysis. There is no grievance that S. 13(2) has been violated. It is evident that the local (Health) Authority has actually come to know of the forwarding of the sample by Food Inspector to the public analyst. Even if the Food Inspector failed to give specific intimation to the Local (Health) Authority about the forwarding of the sample to the public analyst, that is not of any consequence at all. There is absolutely no question of prejudice also. The provision for intimation to the Local (Health) Authority is evidently intended only to keep him informed since he is the person to receive the other two samples under R. 17(b) and discharge the duties under Ss. 13(2), 13(2A), 13(2C), 13(2E) etc. Even without a specific intimation under S. 11(1)(c)(i) he will get himself informed by compliance of S. 11(1)(c)(ii) read with R. 17(b). 13(2), 13(2A), 13(2C), 13(2E) etc. Even without a specific intimation under S. 11(1)(c)(i) he will get himself informed by compliance of S. 11(1)(c)(ii) read with R. 17(b). Further in this case one of the samples sent to him under S. 11(1)(c)(ii) read with R. 17(b) was produced by him in Court on the application of the accused and it was examined by the Central Food Laboratory and thereby the report of the Public Analyst has become superseded also, rendering compliance of S. 11(1)(c)(i) absolutely irrelevant. Further complete violation of S. 11(1)(c)(i) itself cannot affect the success of prosecution because it is not a mandatory provision, the non-observance of which will cause any prejudice to the accused. There are certain mandatory provisions, the non-observance of which will automatically crate a presumption of prejudice having been caused. In other cases non-observance, delayed observance or absence of strict observance will be fatal only if it is shown that prejudice has resulted to the accused. In this case the question of prejudice is beyond imagination even. 10. It is not known on what basis the Sessions Judge found that S. 11(1)(c)(i) has been violated. I have earlier stated that the accused had no such contention at any time before arguments in Crl. A. 16/84. P.W. 1 gave evidence regarding observance of all the formalities. It is true that his evidence was only in a general way. But he was not cross examined with reference to the non-compliance of S. 11(1)(c)(i). The oral and documentary evidence shows that Local (Health) Authority was aware of the fact of having sent the sample to the public analyst. Then I fail to understand how such a contention was allowed to be raised at the time of arguments. The portion earlier extracted by me from the Food Inspector's case 1983 Ker LT 901 : (1983 Cri LJ NOC 224) shows that in this case itself this Court observed that the evidence of P.W. 1 is corroborated by other oral and documentary evidence and when the accused failed to cross-examine P.W. 1 in regard to the details and failed to suggest either non-compliance with any particular details of a rule or prejudice having not been suffered, he certainly runs a risk. So also it was pointed out that the presumption regarding official acts under S. 114 of the Evidence Act is also available. So also it was pointed out that the presumption regarding official acts under S. 114 of the Evidence Act is also available. All these were sufficient indications for the Sessions Judge to understand that his stand is not correct. He has ignored all the decisions of this Court and the Supreme Court for the purpose of accepting the decision in Raghunath's case, 1984 Cri LJ 198 (Bom) as laying down the correct law that all the provisions of the Act and Rules are mandatory. The decision in Raghunath's case 1984 Cri LJ 198 (Bom) is having only persuasive effect on the judge. 11. The judgment of the Sessions Judge shows that the Public Prosecutor reminded him of the fact that Ext. P9 report of the Public Analyst has been superseded by Ext. P11 certificate of the Director of Central Food Laboratory by examining the sample produced by the Local (Health) Authority himself and for that reason also compliance of S. 11(1)(c)(i) has become absolutely irrelevant. But the Sessions Judge says that the provisions of S. 11 were enacted for the purpose of acting a safeguards against tampering by the concerned authorities. It is known what safeguard could be afforded in this respect by intimation to the Local (Health) Authority. In the decision in Food Inspector's case 1983 Ker LT 901 : (1983 Cri LJ NOC 224) itself this Court has specifically referred to the provisions of S. 11 also. It is not known what is the safeguard meant by the Sessions Judge in this respect. I am of opinion that the Sessions Judge not only went wrong in finding that S. 11(1)(c)(ii) is mandatory and it was violated resulting in the necessity of acquittal, but also misguided himself in arriving at that conclusion. In the background of the contentions, evidence, facts and circumstances mentioned by me earlier, I am led to believe that a fair minded approach to the evidence and circumstances would have definitely deterred the judgment from the wrong and impossible conclusion which is not in any way warranted. The finding is illegal and it is unsupported by facts, law, reason or logic and it has definitely resulted in miscarriage of justice. The finding of the Session Judge that S. 11(1)(c)(i) is violated has to be set aside. The finding is illegal and it is unsupported by facts, law, reason or logic and it has definitely resulted in miscarriage of justice. The finding of the Session Judge that S. 11(1)(c)(i) is violated has to be set aside. I find that S. 11(1)(c)(i) has not been violated and that even if the provision is not proved to have been complied with, it is not fatal to the prosecution for the reasons that the provision is not at all mandatory and no prejudice has resulted. 12. Normally when acquittal is set aside the case has to be sent back to the Sessions Judge for re-hearing of the appeal in the light of the observations made by this Court with a direction to dispose of the appeal on the merits according to law because, while exercising the revisional jurisdiction this Court cannot finally dispose of the case on account of the prohibition contained in S. 401(3) that in revision a finding of acquittal cannot be converted into one of conviction. S. 401(1) deals with the power of the High Court in revision. All these provisions are equally applicable to the suo motu revisional powers of the High Court also. The contention of the accused before me was that what is prohibited under S. 401(3) cannot be achieved by a remand. According to him, a remand in such a case could be had only if further enquiry is to be made or if retrial becomes necessary. S. 401(1) deals with the powers of the High Court in revision, and it reads : "401(1). In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Ss. S. 401(1) deals with the powers of the High Court in revision, and it reads : "401(1). In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Ss. 386, 389, 390 and 391 or on a Court of Session by S. 307 and, when the judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by S. 392." That includes the power under S. 386 of the Cr.P.C. also, S. 386(a) which alone is necessary for our purpose, reads : "386(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law." It is under this provision that the counsel contended that remand could be resorted to only if further enquiry or re-trial is ordered. In this case the entire evidence is over and what is required is only re-hearing of the appeal. The counsel contended that if in such a case the only available contention is negatived and the case is remanded for re-hearing, the Sessions Judge will have no other go but to convict the accused and it will amount to achieving what this Court could not have achieved on account of S. 401(3). I do not think that there is much merit in this contention. In my opinion, S. 386 read with S. 401(1) of the Cr.P.C. is not having the effect of ousting the jurisdiction of this Court in appropriate cases to remand an appeal for re-hearing if it is found that such a course is necessary in order to avoid miscarriage of justice on account of a wrong decision on a question of law of vital importance in deciding the guilt or innocence of the accused. The power to direct further enquiry or order to re-trial need not be taken as ousting the jurisdiction of this Court to order a re-hearing in appropriate cases in order to meet the ends of justice. 13. The power to direct further enquiry or order to re-trial need not be taken as ousting the jurisdiction of this Court to order a re-hearing in appropriate cases in order to meet the ends of justice. 13. It is true that the legislature in its wisdom has placed restrictions in the right of appeal against acquittal as provided in S. 378 of the Code. Whether the appeal is by the State or a private party, it could only be by special leave of the High Court as provided in sub-secs. (3) and (4) of S. 378. That only means that the legislature wanted acquittals to be challenged only in cases where there are sufficient grounds in support of the challenge. The object of limiting the right of appeal against orders of acquittal is to ensure that such appeals are filed only where there has been miscarriage of justice and not when inspired by vindictiveness or modes other than vindication of justice. Punishment for offences is normally responsibility of the State which is the guardian of law and order. Originally the right to appeal against acquittal was only with the State. Now when an order of acquittal is passed in a case instituted on complaint, the complainant is also permitted to present an appeal provided the High Court grants him leave on his application. Even in such a case, the complainant's inability in securing special leave would under S. 378(6) bar the State also from appealing. This only indicates the anxiety of the legislature not to expose orders of acquittal to plurality of appeals by preserving to the State a distinct right of appeal unaffected by the right of the complainant to appeal. In this case neither the complainant nor the State filed appeal against the acquittal. Generally appeal is field in food adulteration cases by the complainant and not by the State. The refusal or inability of the State or the complainant or anybody else to file an appeal or revision cannot in any way affect the suo motu revisional power of the High Court under S. 401 of the Code. Any of the powers enumerated in S. 401(1) could be exercised by the High Court even when the High Court otherwise comes to know of things. Any of the powers enumerated in S. 401(1) could be exercised by the High Court even when the High Court otherwise comes to know of things. Therefore it cannot be said that suo motu revisional jurisdiction of this Court is in any way affected or abridged by the fact that the State or the complainant did not file an appeal. Counsel for the accused did not argue for such a position also. He only said that in the absence of such an appeal this Court may not remand the case and expose this Court may not remand the case and expose the accused to the sure possibility of a conviction. 14. The power under S. 401 is an extraordinary discretionary power to be exercised only in the aid of justice. It could be exercised only to set right grave injustice. The power is given to see that justice is done according to the recognized rules of criminal jurisprudence and that subordinate Courts do not exceed their jurisdiction or abuse their powers. Interference with conclusion of facts may not be justified in revisional jurisdiction in the absence of serious legal infirmity and failure of justice. The power could be exercised only in exceptional cases where the interests of public justice require interference for the correction of manifest illegalities or to prevent miscarriage of justice. The mere fact that the lower Court has taken a wrong view of the law or misappreciated the evidence may not justify interference in revision if it has not resulted in grave miscarriage of justice. It may not be possible to lay down the criteria to decided which are the exceptional cases in which the High Court could interfere with a finding of acquittal in revision. Glaring defect in procedure or manifest error on a point of law resulting in flagrant miscarriage of justice will definitely be the circumstances where the High Court will be justified in interfering. Wrong shutting out of evidence or wrong admission of inadmissible evidence or overlooking of material evidence may be cases of justified interference. 15. In this case, the Sessions Judge went out of the way and ignored the directions and observations of this Court in the appellant judgment. He resorted to unnecessary discussions on legal and factual questions in order to bring out that the provisions of S. 11(1)(c)(i) are mandatory and that it has been violated. 15. In this case, the Sessions Judge went out of the way and ignored the directions and observations of this Court in the appellant judgment. He resorted to unnecessary discussions on legal and factual questions in order to bring out that the provisions of S. 11(1)(c)(i) are mandatory and that it has been violated. In that respect he ignored all the precedents of this Court and the Supreme Court. In fact S. 11(1)(c)(i) provides only a formality. The compliance of that formality itself is patent from the evidence. The very object and purpose of the legislation has been flouted by the Sessions Judge by his finding on this particular points. That has definitely resulted in miscarriage of justice which is the duty of this Court to rectify. When such an illegality which resulted in miscarriage of justice comes to the notice of this Court, silence on the part of this Court may not be justified. In such a case even if further enquiry of re-trial is not necessary on account of the fact that the evidence is complete, this Court will not be justified in refusing to interfere on the ground that interference and a direction for re-hearing will have the possibility of the accused being convicted. In such a case the only course open to this Court is to set aside the findings and the acquittal and to direct the Sessions Judge to re-hear the appeal and dispose of the same, according to law, on the merits. 16. Learned counsel for the accused brought to my notice the decisions in D. Stephens v. Nosibolla, AIR 1951 SC 196 : (1951) 52 Cri LJ 510, Ramesh Chandra v. A. P. Jhaveri, AIR 1973 SC 84 : (1973 Cri LJ 201), C. Kotaiah v. G. Venkateshwara, AIR 1973 SC 1274 : (1973 Cri LJ 978), Akalu Ahir v. Ramdeo Ram, AIR 1973 SC 2145 : (1973 Cri LJ 1404), Chinnaswamy v. State of Andhra Pradesh, AIR 1962 SC 1788 : (1963 (1) Cri LJ 8) and State of Kerala v. Venkita Rao, 1970 Ker LT 95. These decisions have not laid down anything more than what I have discussed earlier. Therefore, I am not referring to those decisions separately in all details. It is true that the decisions held that by ordering re-trial, the High Court cannot indirectly achieve what it could not do under S. 301(3). These decisions have not laid down anything more than what I have discussed earlier. Therefore, I am not referring to those decisions separately in all details. It is true that the decisions held that by ordering re-trial, the High Court cannot indirectly achieve what it could not do under S. 301(3). The right of the High Court to set aside an illegal finding which resulted in miscarriage of justice and consequently setting aside the acquittal and ordering re-trial, re-hearing or further enquiry in the ends of justice is not negatived any of those decisions. In revision the High Court may not be justified in finding the accused guilty and remanding the case for re-hearing for the purpose of entering a conviction. In such a case to could be said that the High Court is achieving what it could not achieve in revision under S. 401(3). In this case, the only question that I was called upon to decide was whether the Sessions Judge was correct in his finding that S. 11(1)(c)(i) has been violated, whether the violation, if any, is fatal and whether the acquittal on that ground is illegal and resulted in miscarriage of justice. My finding is in the affirmative on all those aspects. I feel that the only course open to me is to set aside the finding and order re-hearing. In the re-hearing the accused will be free to set up any defence which will be available to him, taking into account the above discussions. I do not feel that there is any legal bar in doing so. 17. It is open to the High Court in revision to set aside the order of acquittal even at the instance of a private party though the State has not thought it fit to file an appeal. The bar under S. 401(3) is only from converting a finding of acquittal in revision to one of conviction or achieving the same by indirect methods. That only places limitations on the power to the High Court. But in exceptional cases the power could be exercised and in such cases it cannot be held as laid down in Chinnaswamy's case AIR 1962 SC 1788 : (1963 (1) Cri LJ 8) that the High Court was doing indirectly what it could not do directly in view of the provisions of S. 401(3). But in exceptional cases the power could be exercised and in such cases it cannot be held as laid down in Chinnaswamy's case AIR 1962 SC 1788 : (1963 (1) Cri LJ 8) that the High Court was doing indirectly what it could not do directly in view of the provisions of S. 401(3). That decision further held that in exceptional cases the High Court will be justified in interfering in revision to direct re-appraisal in evidence, which means re-hearing. In C. Kotaiah's case, AIR 1973 SC 1274 : (1973 Cri LJ 978) it was only held that though S. 401(3) places restrictions, the High Court can set aside a finding of acquittal in revision in exceptional cases. In that case what was found objectionable was that High Court cannot convert a finding of acquittal into one of conviction and direct the trail Court to convict the accused after re-trial. No question of lack of jurisdiction is involved. The acquittal entered by the Sessions Judge in this case is illegal, perverse and in violation of the directions contained in the appellate judgment of this Court. Such a finding of acquittal has resulted in miscarriage of justice also. Therefore, I feel that I cannot but set aside the finding of acquittal and I do so. 18. The learned counsel for the accused argued that in a case like the one before me, even if this Court finds that the conclusion of the Sessions Judge are perverse and illegal, the only course open is to leave the acquittal as it is after declaring the finding as illegal and incorrect and laying down the correct law for future guidance, because otherwise a remand after setting aside the acquittal will only result in conviction. I do not think that such a consideration should weigh with me when the interest of justice demands otherwise. This Court, if it so thinks could declare the law and refuse to set aside the acquittal. But that will be encouraging miscarriage of justice on patently wrong findings. I do not agree with the counsel that my hands are fettered by law, equity or justice in that respect. I am of opinion that what I am doing is not, and cannot be construed as, achieving something which is prohibited under S. 401(3). But that will be encouraging miscarriage of justice on patently wrong findings. I do not agree with the counsel that my hands are fettered by law, equity or justice in that respect. I am of opinion that what I am doing is not, and cannot be construed as, achieving something which is prohibited under S. 401(3). I go under the impression that I am only discharging a duty that I am bound under law to discharge. Otherwise it may amount to failure in discharging the duty of rectifying miscarriage of justice. 19. In the result, the finding of the Sessions Judge that S. 11(1)(c)(i) is mandatory, that it has been violated and that the violation is fatal are hereby set aside. It is found that S. 11(1)(c)(i) is only directory, that it has been substantially complied with, that no prejudice has resulted and that the consequent acquittal based on the finding is perverse, illegal and has resulted in miscarriage of justice. The acquittal is, therefore, set a said and the case is remanded to the Sessions Court for rehearing and disposal on the merits, according to law. I further direct that the case may not be heard and decided by the Judge who decided the appeal and it may be heard and disposed of by the Sessions Judge or some other additional Sessions Judges at Ernakulam within six weeks of the receipt of records. A copy of this order will be sent to the Sessions Judge, who decided the appeal and another copy will be sent to the Judge be sent to the Judge in charge of Ernakulam District. The office will transmit the records at once and the accused and the complainant will make their appearance in person or through pleader before the Sessions Court on the 22nd of the month. Crl. Revision Case is disposed of as above. A copy of this judgment will be forwarded to the Government also for consideration of what is stated in para 1 of this order. Order accordingly.