1. This revision has been referred be a Bench of two Judges by a learned Judge of this Court for decision as to the powers of an appellate Court under Section 406 of the Code of Criminal Procedure. The applicants were bound over by a Magistrate of the First Class of Benares to keep the peace. They appealed to the Court of Session which directed that the order binding over the applicants should be reversed and that there should be a retrial. The question is whether the appellate Court has the power under Section 423 of the Code of Criminal Procedure to order a re-trial. The authority given to an appellate Court is contained in Clauses (c) and (d). In an appeal from an order the appellate Court may alter or reverse such order and may make any amendment or any consequential or incidental order that may be just or proper. Under Clause (b) in an appeal from a conviction the appellate Court is specifically given the power of ordering a re-trial. The distinction exists for a very obvious reason. Under Section 403 a person once convicted or acquitted cannot be tried for the same offence, and in an appeal from a conviction, if the conviction is reversed, the appellant may claim that he has been acquitted and he would not be liable to re trial for the same offence. To obviate this difficulty power has to be given to the appellate Court specifically to order a re-trial. This difficulty will not arise in proceedings taken under Section 107 of the Criminal Procedure Code. A person bound over under the terms of that section is not convicted of any offences and may be re-tried in pursuance of the same order passed under Section 107. The order for re-trial is, in our opinion, an incidental order. All that the Sessions Judge has done is to reverse the, order binding over the applicants and then to direct that proceedings subsequent to the stage of the issue of a notice under Section 107 be all cancelled and that the Magistrate do proceed from the stage of the issue of notice.
2. It was argued by the applicants' learned Counsel that the Sessions Judge has no power to issue notice to persons to show cause why they should not be bound over to keep the peace. In the present case the Sessions Judge does not issue any such notice. What he has done is to cancel proceedings subsequent to the stage of the issue of the notice and the notice to the applicant issued by the Magistrate is maintained. There will be no necessity of issuing fresh notice to the applicant. We are of opinion that the order passed by the lower Court of re-hearing of the notice issued under Section 107 is an incidental order following on the reversal of the order binding over the applicant.
3. We dismiss this application in revision.