Ganga Nath, J.
1. This is an application in revision by Bahraichi and Jumman against the order of the learned Additional Sessions Judge of Basti ordering that Bahraichi be committed for trial to the Court of Session for an offence under Section 366, Indian Penal Code, or in the alternative for an offence under Section 373, Indian Penal Code and that Jamman be committed to the Court of Session to stand his trial along with Bahraichi for an offence under Section 368, Indian Penal Code. Bahraichi was convicted under Section 368, Indian Penal Code by Mr. Alauddin, Magistrate, 1st Class, Basti. They filed an appeal against their conviction and sentence. In appeal the learned Additional Sessions Judge set aside the conviction and sentence of both the appellants and made an order directing the applicants to be committed for trial to the Court of Session as stated above. The chief point urged by the learned Counsel for the applicants is that Section 403 of the Criminal Procedure Code bars the re-trial of the applicants. The learned Additional Sessions Judge has acted under Clause (b) of Section 42(sic), Criminal Procedure Code which lays down: 'The Court may in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial.
2. Before an Appellate Court passes an order for re-trial or commitment of the accused for trial, the conviction and sentence already passed have to be reversed. This reversal of the conviction and sentence does not amount to an acquittal such as is referred to in p. 403, Criminal Procedure Code.
3. This view is not without authority. In Emperor v. Baijnath : AIR1932All409 the accused had been convicted under Section 363, Indian Penal Code by a Magistrate. He appealed and the learned Judge set aside the conviction and sentence and sent the case back to the Magistrate with a direction to him to commit the accused for trial on a charge under Section 366, Indian Penal Code. It was contended on behalf of the accused that he had been acquitted but it was ruled that it was not so. It was also held that the Judge set aside the order of the Magistrate and that he had to do before he could order a commitment but he did not 'acquit'. The Judge went further and said: 'Even had he used the word, we should have been prepared to hold that it was merely an error and did not in law amount to an 'acquittal.'
4. Section 403, Criminal Procedure Code, does not bar a re-trial ordered by an Appellate Court under Clause (b) of Section 423, Criminal Procedure Code. If the Sessions Judge finds reason to hold that the persons concerned in the case have been convicted of an offence not warranted by the evidence, he has power under Section 423, Criminal Procedure Code, to annul the conviction and order a re-trial of a case according to law, vide, Queen-Empress v. Ram Prasad 4 A 240.
5. The learned Counsel for the applicants has relied on Muhammad v. Saleh v. Emperor 51 Ind. Cas. 686 : 20 Cr. L.J. 526. In this case the accused had been acquitted under Section 363, Indian Penal Code. After the acquittal, upon an application by the complainant, the Sessions Judge directed fresh enquiry to be made to ascertain whether offences under Section 366 or 368 or any other section of the Penal Code had been committed by the accused. It was held that the order directing further enquiry should not have been made in view of his previous acquittal. The other case relied on by the learned Counsel is Kala Nath v. Emperor 24 C.W.N. 856 : 57 Ind. Cas. 929 : 21 Cr. L.J. 689. In this case the petitioners were tried on charges of kidnapping a minor girl and rioting with the common object of kidnapping the girl. The trying Magistrate acquitted them of the said charge but convicted them of being members of an unlawful assembly with the common object of causing assault and wrongful restraint. In appeal the Sessions Judge set aside the conviction and ordered a re-trial on charges of abducting the girl in order to confine her secretly, and of rioting with that common object. It was held that re-trial on the charges mentioned was barred by Section 403, Criminal Procedure Code.
6. Both these cases relate the cases of acquittal against which there was no appeal. Such an acquittal clearly bars retrial of the accused for the same offence under Section 403, Criminal Procedure Code. As already stated, there is no order of acquittal so far here. All that the learned Judge has done is that he has set aside the conviction and sentence which he had to do before directing the commitment of the applicants for trial to the Court of Session under Clause (b) of Section 423, Criminal Procedure Code. Section 403, Criminal Procedure Code does not bar the order of the learned Additional Sessions Judge. It is, therefore, ordered that the application be rejected. If the accused are on bail they must surrender to their bail.