INDRA KUMAR NATH Vs. STATE

JUDGEMENT

(1.) This matter has been laid before me under the provisions of Section 429, Criminal P. C. read with Section 439(1) of the same Code, as Mitter J. and Sen J. who heard the Rule could not agree as to how it should be disposed of.

(2.) The Rule was issued on the application of Indra Kumar Nath, an accused in a case pending before the Assistant Sessions Judge, Krishnagar, calling upon the District Magistrate of Nadia to show cause why the case should not be transferred from the Court of the Assistant Sessions Judge before whom it was pending to the District and Sessions Judge, Nadia or in the alternative why the proceedings pending against him should not be quashed or such other or further orders passed as the Court might think fit and proper.

(3.) The petitioner was first tried by the same Assistant Sessions Judge with the aid of a jury on a charge under Section 304, Penal Code. In accordance with the unanimous verdict of the jury that he was not guilty under Section 304, Penal Code but was guilty of the minor offence under Section 325, Penal Code, the learned Judge acquitted him of the charge under Section 304 taut convicted him under Section 325, Penal Code and sentenced him to rigorous imprisonment for three years. The petitioner appealed against this order of conviction and sentence to the Sessions Judge. The Sessions Judge came to the conclusion that it was impossible to maintain the conviction of the appellant and the sentence passed upon him; that the defects and irregularities pointed out were serious misdirections which vitiated the verdict of the jury, but holding that this was a case where a retrial should be ordered, he passed the following order: "In the result, the appeal is allowed. The verdict of the jury and the conviction and sentence which followed thereupon are set aside. I direct that the appellant be retried according to law by the learned Assistant Sessions Judge, Nadia. The accused appellant will remain on the same bail until the conclusion of the fresh trial."