EMPEROR Vs. BAHRAICHI

JUDGEMENT

(1.) This is an application in revision by Bahraichi and Jumman against the order of the learned Additional Sessions Judge of Basti ordering that Bahraichi be committed for trial to the Court of Session for an offence under Section 366, Indian Penal Code, or in the alternative for an offence under Section 373, Indian Indian Penal Code and that Jamman be committed to the Court of Session to stand his trial along with Bahraichi for an offence under Section 368, Indian Penal Code. Bahraichi was convicted under Section 368, Indian Penal Code by Mr. Alauddin, Magistrate, 1 Class, Basti. They filed an appeal against their conviction and sentence. In appeal the learned Additional Sessions Judge set aside the conviction and sentence of both the appellants and made an order directing the applicants to be committed for trial to the Court of Session as stated above. The chief point urged by the learned Counsel for the applicants is that Section 403 of the Criminal Procedure Code bars the re-trial of the applicants. The learned Additional Sessions Judge has acted under Clause (b) of Section 42(sic), Criminal Procedure Code which lays down: "The Court may in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial.

(2.) Before an Appellate Court passes an order for re-trial or commitment of the accused for trial, the conviction and sentence already passed have to be reversed. This reversal of the conviction and sentence does not amount to an acquittal such as is referred to in p. 403, Criminal Procedure Code.

(3.) This view is not without authority. In Emperor V/s. Baijnath the accused had been convicted under Section 363, Indian Penal Code by a Magistrate. He appealed and the learned Judge set aside the conviction and sentence and sent the case back to the Magistrate with a direction to him to commit the accused for trial on a charge under Section 366, Indian Penal Code. It was contended on behalf of the accused that he had been acquitted but it was ruled that it was not so. It was also held that the Judge set aside the order of the Magistrate and that he had to do before he could order a commitment but he did not "acquit". The Judge went further and said: "Even had he used the word, we should have been prepared to hold that it was merely an error and did not in law amount to an "acquittal."