1. We have heard this matter argued at very considerable length. The fact was that the applicant in this case was accused of an offence and was put before a Magistrate who took the evidence and discharged him. Subsequently the District Magistrate ordered a retrial under the powers conferred on him by Section 437 of the Criminal Procedure Code. The applicant has come to us in revision against that ordor of the District Magistrate.
2. I must mention that the District Magistrate made his order of retrial without giving notice to the present applicant and without affording him an opportunity of being heard, and, speaking for myself, I think that is a proceeding which is not consonant with the broad general principles of our judicial administration. I think that when an order is made which is so very seriously to the prejudice of an accused person as directing his retrial, it ought not to be made without giving him an opportunity of being heard, although the law does not specially lay down that notice is required.
3. I, therefore, think that' the appropriate order to make in this case would be to send it back to the District Magistrate that he may give notice to the applicant and hear him in person or by a pleader if he appears and has anything to say.
4. I agree with the order proposed. I desired my learned brother to give his judgment first as ho has had much longer experience in this Court than I have and is entitled to speak upon all points of practice with authority.
5. I must at the same time guard myself against being supposed to hold that the law makes it obligatory upon a Sessions Judge or a District Magistrate acting under Section 437 to give notice to the accused. In any given case where that has not been done, it will of course be open to the High Court, should the ends of justice require it, to direct the District Magistrate to supply that omission. Still less can I agree with what was-much pressed upon us in argument and has been claimed to be1 a settled principle that the Sessions Judge and the District Magistrate acting under Section 438 have no authority to direct a retrial, merely because their appreciation of the evidence difiers-from that of the trying Magistrate. It is true that that principle has been qualified by many terms such as that the judgment of the trying Magistrate must be reasonable and he must come to a conclusion according to law. As it is a principle, however, it must stand, as I have stated it and as such I do not think it could be enforced without materially curtailing the powers conferred upon the Sessions Judges and the-District Magistrates by the Legislature. In the order proposed my learned brother has given effect to what I understand has-been his practice In this Court over a long series of cases and as he has himself long presided in this Court and the practice-is certainly a salutary one, I could have no objection to concurring in the order proposed. What I have said, I think, will' sufficiently indicate that in doing so I refrain from any semblance of admitting that any practice of the Court can either abrogate or add to the statute law.