Authored By : Robert Fulton Rampini, J. Pratt

Robert Fulton Rampini and J. Pratt, JJ.

1. This is a rule calling on the District Magistrate to showcause why the order of the Sessions Judge, directing a retrial in this case,should not be set aside.

2. The facts of the case are that the petitioner wasconvicted by the Magistrate of an offence under Section 211 of the Penal Codeand discharged of offences under Section 468 and 471. He appealed to theSessions Judge, who set aside the conviction and sentence under Section 211 ofthe Penal Code, but directed that the case under Section 211 of the Penal Codeshould be retried.

3. It is now urged that the Sessions Judge had no power topass such an order, and that the power to order a new trial conferred on him bySection 423(1)(b) can only be exercised when the conviction and sentence is setaside for want of jurisdiction in the Magistrate who has tried the case. Insupport of this contention, the remarks of Brodhurst, J., in Queen-Empress v.Sukha : I.L.R (1885) ., 8 All., 14, have been cited. Theseremarks are, however, obiter dicta, and as regards the point decided in thecase, viz., as to the power of an Appellate Court to order the committal ofcases to the Court of Sessions, the decision has been dissented from in thecases of Queen-Empress v. Maula Baksh (1893) I.L.E., 15 All., 205,Queen-Empress v. Abdul Rahaman I.L.R (1891) ., 16 Bom., 580, and Misri Lal v.Bajpie I.L.R (1895) ., 23, Cal., 350.

4. On a consideration of the terms of Section 423(1)(b)(1),we think there is nothing to limit the power of an Appellate Court to order aretrial. This seems to us to be expressly laid down in the case ofQueen-Empress v. Maula Baksh : I.L.R (1893) ., 15 All., 205,where it is said: "We find nothing in Section 423 of Act X of 1882 tolimit the power of the Sessions Judge to do any of the acts which he, as anAppellate Court, is empowered to do by Sub-clause 1 of Clause (6) of Section 420."Again, in Queen-Empress v. Jabanulla I.L.R (1896) ., 23 Cal., 975 [LQ/CalHC/1896/78] , it is said:"Section 423, Clause (b), has no such restriction imposed upon it. Thereis under that clause only one restriction to the power of the Appellate Courton an appeal from a conviction, and that is that it cannot enhance thesentence." We may add that the ground taken in this rule by the learnedCounsel for the appellant was not taken in the written petition to this Court.The question raised in the petition is as to the discretion of the Judge inremanding the case after the prosecution had full opportunity of proving theircase.

5. We are accordingly of opinion that there is no legaldefect in the order passed by the Sessions Judge in this case, and we dischargethe rule.

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Satis Chandra Das Bosevs. Queen-Empress (29.08.1899 -CALHC)