ORDER
Kumaraswamy Sastri, J.
1. The petitioner filed a complaint against the counter-petitioner (who was the 3rd accused) and others charging them under Section 426 of the Indian Penal Code with having intentionally driven their cattle into, and thrashed before the produce was harvested, the crops on his field. The Stationary Magistrate of Nannilam convicted the accused and sentenced them to pay a fine of Rs. 10 each.
2. On appeal the Sub-Divisional Magistrate reversed the conviction on the ground that the 3rd accused thought that he had a perfectly genuine claim to the land and the crops. Reading the judgment as a whole, there can be little doubt that he agreed with the Stationary Magistrate in thinking that mischief was caused. His finding that there was malice can only be reconciled with the view that he found that mischief was caused.
3. A revision petition was filed by the present petitioner (Criminal Revision Case No. 475 of 1913) against the order of the Sub-Divisional Magistrate, and the Honourable Mr. Justice Sadasiva Aiyar set aside the acquittal and directed a re-hearing. His Lordship observed as follows: The Sub-Divisional Magistrate admits that the action was” no doubt actuated by malice.’ This means, I take it, that accused wanted to injure prosecution witnesses Nos. 1 and 2 and as such injury will be wrongful damage * * * the accused were guilty of mischief.” The Sub-Divisional Magistrate was ordered to re-hear the appeal with reference to the observations made in the order.
4. The case came on before another Sub-Divisional Magistrate. He states in paragraph 2 of his judgment that his predecessor, as a matter of fact, found that the crops were damaged by the accused; but in dealing with the case he differed from his predecessor and found that no damage was caused and acquitted the 3rd accused.
5. The questions are whether it was open to the Sub-Divisional Magistrate to go behind the finding of his predecessor (that mischief was caused) and the observations of the High Court which accepted the finding and laid down the law which was to guide the Magistrate in re-trial.
6. It is argued by Mr. Devadoss that when the case was sent down to him for re-trial, the Sub-Divisional Magistrate had to apply his mind afresh to the appeal and that it was open to him to come to a different conclusion on facts. It is also argued that as the order of the lower Court was set aside it must be treated as non-existent. No authority has been cited for the broad proposition that when a case is directed to be re-tried, the Judge re-trying it can go behind findings of fact which have been accepted by all the Courts and which were the basis on which a re-trial was ordered. I do not think this contention is sound. In the present case it is an accident that a different Sub-Divisional Magistrate tried the case on remand.
7. The effect of the setting aside of an order and directing re-trial must depend upon the facts of each case and on the scope of the order of remand. In the present case the Sub-Divisional Magistrate was ordered to re-try the appeal “with reference” to the observations made by the High Court. I do not think it empowered the Magistrate to go behind the findings of his predecessor which were accepted by the High Court as the basis of the order directing a retrial.
8. I set aside the order of the lower Court and direct that the Sub-Divisional Magistrate do dispose of the case according to law on the footing that injury was caused to the crops by the 3rd accused.
