BHAIYALAL KHUBCHAND Vs. KING-EMPEROR

JUDGEMENT

(1.) The six applicants, who had been called upon to show cause under Section 107, Criminal P.C., by the First Class Magistrate, Bilaspur, duly filed their written statements denying the allegations made against them and the case was fixed for 6 January 1943 for the evidence of the prosecution witnesses. On that date, however, the applicants presented an application in which they voluntarily agreed to execute the bond required by the preliminary order and the First Class Magistrate concerned passed an order in those terms. In spite of this, the applicants appealed to the Additional Sessions Judge, Bilaspur, and he remanded the proceedings for retrial from the stage prior to the passing of the trial Court's order, on the ground that in such proceedings an enquiry must be held before the final order can be passed.

(2.) The applicants have now come in revision to this Court on the grounds that the appellate Court had no jurisdiction to remand the ease for retrial and that the order for retrial was not warranted by S, 423, Criminal P. 0. and was illegal. In other words, the applicants claim that the proceedings should be quashed ab initio.

(3.) In Dayanath Taluqdar V/s. Emperor, 33 cal, 8 : (3 Cr. L. J. 248), a Division Bench held that a District Magistrate has no power under the law to order a further enquiry in a proceed, ing under Section no, Criminal P. C, after setting aside, on appeal, an order passed by a subordinate Magistrate directing the accused to furnish security for good behaviour. In NarappaBeddyi In re, , Burn J. was of the view that when an appeal is preferred from an order under Section 107, Criminal P. 0., the appellate Court has no juris, diction to order a de novo trial; and in Sheikh Abdulla V/s. Emperor, a. i. b. (29) 1942 oudh 416 Bennett J. held that it is not competent to a Court hearing an appeal from an order passed under Section 107, Criminal P, C, to order a retrial.