1. This revision raises a question as to the powers of the appellate Court under Section 406 of the Code or Criminal Procedure. The applicants were bound over by a Magistrate of the first class of Bulandshahr to keep peace under Section 107, Cr.P.C., on the 15th of January, 1955. The security and the required bonds were furnished on the 18th of January, 1955. They, however, appealed to the Court of Session which directed on the 17th of February, 1955, 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 retrial.
The authority given to the appellate Court is contained in clauses (c) and (d) of Section 423. In an appeal from order the appellate Court may alter or reverse such order and make any amendment or consequential or incidental order that may be just and proper. Under Clause (b) of Section 423, in an appeal from a conviction the appellate Court is specifically given the power to order a retrial. The distinction exists for a very obvious reason.
Under Section 423 a person once convicted or acquitted cannot be tried for the same offence and in an appeal from the conviction if the conviction is reversed, the appellant may claim that he would not be liable to retrial for the same offence. To obviate this difficulty, power has been given to the appellate Court specifically to order a retrial.
2. This difficulty will not arise in proceedings taken under Section 107 of the Code of Criminal Procedure, A person bound over under the terms of that section is not convicted for any offence, and may be retried in pursuance of an order passed in appeal under Section 406 of the Code. The order of retrial is an incidental order. This view is supported by Division Bench decision of this Court in Bhagwat Singh v. Emperor : AIR1926All403 .
3. In a single Judge decision of the Madras High Court in Narappa Reddy, In re : AIR1934Mad202 , it was held that the appellate Court lias no jurisdiction to order a de novo trial and it can. only alter or reverse the order under Section 423 (1) (c) arid under Section 423 (1) (d) may pass any consequential order that may be just and proper.
4. In Katwaru Rai v. Emperor : AIR1932All680 , the view taken by a single Judge of this Court was that although it cannot be said that a person, against whom an order has been passed under Section 107 of the Criminal Procedure Code to furnish security for keeping the peace, has been convicted of an offence, yet there is no reason why he Cannot be said to be a 'convicted person' within the meaning of those words in Section 426 (1) of the Criminal Procedure Code.
5. The Oudh Chief Court in Abdullah Sheikh v. Emperor AIR 1942 Oudh 416 (D), considered the Madras High Court decision and the two decisions of this Court referred to above and came to the conclusion that it is not competent for the Court hearing an appeal from an order passed under Section 107 to order a retrial.
6. In my opinion, the correct view of law was laid down by the Division Bench of this Court in Bhagwat Singh v. Emperor (A), and following that decision I would hold that it is competent to the Court hearing an appeal in a case under Section 107 of die Code of Criminal Procedure to direct that the case before it he retried.
7. It has been contended on behalf of the applicants that even if the order of retrial is supported on the legal aspects of the case it should not be given effect to on merits, and this argument is founded upon the contention that in this case the required security was furnished and the bonds were not cancelled in appeal by the Sessions Judge and more than a year has elapsed since the furnishing of the security. No breach of peace has been contended. It is not controverted that if the local authorities have good reason to apprehend a breach of peace on a consideration of the present state of feelings between the parties, they would be justified in initiating fresh proceedings against the applicants.
At the same time it is not conceded by the applicants that there is now any ground for this apprehension. The question would be one for the local authorities to decide. In view of the fact that enough time has elapsed and the bonds were furnished and the time imposed by the trial Magistrate has expired, I do not think that any useful purpose would be served by the retrial.
8. I, therefore, allow the application in revision and set aside the order dated the 17th February, 1955, passed by the learned Sessions Judge for retrial.