MURARI AND ANOTHER Vs. STATE

JUDGEMENT

(1.) This revision is directed against the order of the learned Sessions Judge Agra, dated 21st June 1956 allowing the appeal of the applicants and setting aside the order of the trial magistrate binding them under Sec. 110, Criminal Procedure Code and sending back the case for a de novo trial from the stage of the notice.

(2.) It Appears that the applicants were served with notices under Clause and (f) of Sec. 100. Criminal Procedure Code requiring them to furnish personal bonds in the sum of Rs. 1,000 with two reliable sureties each in sum of Rs. 500.00 to be of good behaviour for a period of one year, and in default to suffer rigorous imprisonment for the same period. the applicants disputed the notices. The learned Magistrate after a consideration of the evidence on the record finally passed an order on the 15th March 1956 requiring them to execute a personal bond for Rs. 1,000.00 and furnish two sureties of Rs. 500.00 each to be of good behaviour during a period of one year, or in default to undergo rigorous imprisonment for the same period. This order was set aside in appeal by the learned Sessions Judge and by the same order he directed a de novo trial of the applicants.

(3.) It has been contended before me on behalf of the applicants that the order of the learned Sessions Judge directing a de novo trial was illegal as under Sec. 423, Criminal Procedure Code he could only alter or reverse such order but had no power to send back the case for re-trial. Sec. 423 defines the powers of the appellate courts in disposing of an appeal and deals with three classes of cases. Clause (a) deals with an appeal from an order of acquittal, Clause (b) deals with an appeal from an order of conviction, Clause (c) deals with an appeal from any other order which is not covered under (a) and (b), and Clause (d) provide that the appellate court may make any amendment or any cosequential or incidental order that may be just or proper. Clauses (a) and (b) which deal with the power of the appellate court in an appeal from an order of acquittal or conviction, expressly provide that the appellate court may send back the case fore re-trial if it considers necessary. No doubt this power is not expressly provided in Clause (c) in dealing with appeals from any other order Which is not an order of acquittal or conviction. I have however, not been able to understand why Clause (d), which empowers the appellate court to make any consequential or incidental order which may be just and proper in the case, does not cover an order for sending back the case to the trial court for further inquiry or re-trial if in the circumstances it appears to be just and proper. In this connection reference may be made to some decisions of this Court On this point.