MARIYAM Vs. STATE OF KERALA

JUDGEMENT

(1.) THE only question that is argued in this revision petition is as to the legality of the order of the District Magistrate, Ernakulam, quashing the conviction of the petitioner and directing retrial from the stage at which the procedure adopted by the lower Court was held to be detective.

(2.) THE petitioner was convicted under Section 294 (b), I. P. C. and sentenced to pay a fine of Rs. 10/- by the Second Class Magistrate, Ernakulam. On appeal it was contended that the accused was prejudiced because he was not personally questioned under Section 342, Cri, P. C. , but only the accused's counsel was questioned; and also that the accused was not given an opportunity to adduce defence evidence. The learned District Magistrate held that this has Caused prejudice to the accused and therefore the conviction and sentence were set aside and the Magistrate was directed to question the accused personally on the evidence and circumstances appearing against him and to permit him to examine defence witnesses.

(3.) IT is argued by the defence counsel that after quashing the conviction the learned District Magistrate ought to have directed a retrial of the entire case and that the Court has no power to order what has been described as a 'partial retrial'.