RAMNIVAS BUNG Vs. STATE OF A P

JUDGEMENT

(1.) The petitioneris AccusedNo. 1 in C.C.No. 13/92 on the file of VII Metropolitan Magistrate, Hyderabad. He has been convicted for the offence punishable under Section 16 (l)(a)(ii) of Prevention of Food Adulteration Act and was sentenced to undergo simple imprisonment for three months and to pay a fine of Rs. 1,000/-, in default to undergo simple imprisonment for one month. There are two accused in the case and the petitioner herein is AccusedNo. 1. Both of them were tried together by the learned Magistrate for the above offence. A-1 was convicted whereas A-2 was acquitted of the said offence. The petitioner filed Criminal Appeal No. 57/94 before the I Additional Metropolitan Sessions Judge, Hyderabad questioning his conviction and sentence. The learned Sessions Judge found that the Magistrate who recorded the entire evidence had been transferred and the succeeding Magistrate considered the said evidence recorded by his predecessor and convicted the petitioner and that such conviction vitiated the trial and in that he set-aside the conviction of the petitioner and remanded the case back to the VII Metropolitan Magistrate, Hyderabad, to try the case afresh. That judgment is in question in this case.

(2.) It is contended by the learned counsel for the petitioner that de-novo trial cannot be ordered since one of the accused in the case has been acquitted and that de-novo trial cannot be conducted only against the petitioner,by splitting up the case.

(3.) It is true that Accused No. 2 in that case has been acquitted by the trial court and that the appeal was filed only by the petitioner, who is Accused No.1. Accused No.2 was not made respondent in that appeal and no appeal has been filed by the State against his acquittal. In similar circumstances, the Supreme Court in State of West Bengal v. Laisal Haque(1) 1989 Crl.L.J. 865 SC, held that retrial cannot be ordered in the absence of an appeal preferred by the State against the acquittal of the other accused, on an appeal filed by the petitioner against his conviction and that it amounts to altering the acquittal of the other accused and splitting up the trial. In the case before the Supreme Court, number of accused have been tried for the offence by the trial court, out of whom 26 accused have been acquitted. The Supreme Court also observed that under Section374 (2) ofthe Code the order of acquittal as against the other 26 accused could not be interfered within an appeal filed by the convicted accused and that there cannot be a piecemeal trial. Retrial directed must necessarily revise the prosecution and must result in a trial de- novo against all the accused including the acquitted persons. In that view the Supreme Court set-aside the order of retrial. The above decision squarely covers the instant case. The impugned order of the learned Sessions Judge directing de-novo trial has therefore to be set- aside.