RAM SARUP Vs. STATE

JUDGEMENT

(1.) This revision raises a question as to the powers of the appellate Court under Section 406 of the Code or Criminal Procedure. The applicants were bound over by a Magistrate of the first class of Bulandshahr to keep peace under Section 107, Cr.P.C., on the 15th of January, 1955. The security and the required bonds were furnished on the 18th of January, 1955. They, however, appealed to the Court of Session which directed on the 17th of February, 1955, that the order binding over the applicants should be reversed, and that there should be a retrial. The question is whether the appellate Court has the power under Section 423 of the Code of Criminal Procedure to order a retrial. The authority given to the appellate Court is contained in clauses (c) and (d) of Section 423. In an appeal from order the appellate Court may alter or reverse such order and make any amendment or consequential or incidental order that may be just and proper. Under Clause (b) of Section 423, in an appeal from a conviction the appellate Court is specifically given the power to order a retrial. The distinction exists for a very obvious reason. Under Section 423 a person once convicted or acquitted cannot be tried for the same offence and in an appeal from the conviction if the conviction is reversed, the appellant may claim that he would not be liable to retrial for the same offence. To obviate this difficulty, power has been given to the appellate Court specifically to order a retrial.

(2.) This difficulty will not arise in proceedings taken under Section 107 of the Code of Criminal Procedure, A person bound over under the terms of that section is not convicted for any offence, and may be retried in pursuance of an order passed in appeal under Section 406 of the Code. The order of retrial is an incidental order. This view is supported by Division Bench decision of this Court in Bhagwat Singh v. Emperor ILR 48 All 501 : AIR 1926 All 403 (A).

(3.) In a single Judge decision of the Madras High Court in Narappa Reddy, In re AIR 1934 Mad 202 (1) (B), it was held that the appellate Court lias no jurisdiction to order a de novo trial and it can. only alter or reverse the order under Section 423 (1) (c) arid under Section 423 (1) (d) may pass any consequential order that may be just and proper.