1. This was a Rule obtained on behalf of Beni Madhab Kundu catling upon the District Magistrate to show cause why the trial of the petitioner should not be stayed, or why such other order should not be passed in the matter as to this Court might seem fit.
2. In this case the petitioner was tried by the Assistant Sessions Judge with a jury, and the verdict of: the jury was that he was guilty of: an offence of receiving stolen property obtained by means of dacoity, and he was sentenced to live years' rigorous imprisonment. An appeal was made to this Court based upon the ground that, after the jury had retired to consider their verdict, one of the jurymen had spoken to a person who was not a juryman, outside the retiring room, and that this person had asked him a question and he had replied to it. On the hearing of the appeal, this Court set aside the verdict on the ground of the irregularity to which I have just referred, and the judgment contained the following sentence:--'It will be 'open to the Crown to proceed further with the case if it be so advised,' and at the end of the judgment there was this sentence:--'We direct that 'until a fresh trial, it any, the accused be enlarged on bail to the satisfaction of the District Magistrate'.
3. The Crown did proceed further and, upon the second trial, the learned vakil on behalf of the petitioner took objection to the trial taking place and the trial of the case was adjourned in order that this matter might be decided by the High Court, whereupon a petition was presented to this Court, and, as I have already said, a Rule was granted.
4. The grounds upon which the petition is based are as follows; (i) 'that 'the order of the High Court amounted to an acquittal in law; (ii) that 'this Court net having ordered a retrial, the Court of Sessions has no juris-'diction to try the petitioner; and (iii) that, at any rate, the order of 'commitment, dated the 9th November 1917, his expired, and the Court Of 'Sessions has no further jurisdiction, to proceed in virtue thereof'
5. Now, the section upon which this depends is Section 423 of the Code of Criminal Procedure, which provides that 'the Court may, if it considers 'that there is no sufficient ground for interfering, dismiss the appeal, or 'may, in an appeal from a conviction, 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 Appelate Court or committed 'for trial.' Then there is the sub-section which provides that' Nothing 'here in contained shall authorise the Court to alter or reverse the verdict 'of a jury, unless it is of opinion that such verdict is erroneous owing to a 'misdirection by the Judge, or to a misunderstanding on the part of the 'jury of the law as laid down by him.'
6. The learned vakil argued that this Court did not in fact order the petitioner to he retried, and consequently, inasmuch as the verdict had been set aside, the order of the Court amounted to an acquittal. In my judgment that argument cannot prevail.
7. I think there can be no doubt upon reading the judgment of this Court that it was never intended by this Court to acquit the petitioner. If there could be any doubt about it, I think the last sentence of the judgment would make it clear, because it was directed that, until a fresh trial, the accused should ha enlarged on bail. If it was the intention of the Court to acquit the accused, there would have been no necessity for an order for bail. Then it is equally clear on the judgment that it did not amount to a discharge, because the same argument will apply to a discharge as to an acquittal.
8. But the real crux of the whole matter seems to me to be this, whether the Court did order a retrial.
9. I think there can be no doubt that orders similar to the one which was made in this case have frequently been made. In fact both the learned Counsel for the Crown and the learned vakil for the petitioner agreed that that was so. But the learned vakil argued that, even if similar orders had in fact been made on previous occasions, if they were made without jurisdiction, that would not entitle this Court to make an order in this case. If I may say so, he was right in that, but the fact that similar orders have been made on previous occasions, without any point being taken as to their validity, is some evidence that the Court his jurisdiction to make such an order. Although the order of the Court might have been made in more explicit language than it was, I have no doubt that the order did amount to an order for retrial, subject to the right of the Crown, if it thought fit, to withdraw the proceedings. That really disposes of this case.
10. But if the argument of the learned vakil were to prevail, then I think the position would he this, that the Court did not finally dispose of the matter, because, as I have said, it is clear that this Court never intended to acquit the petitioner, nor did it intend to discharge him; but it did set aside the verdict on the ground of an irregularity which occurred in the course of the trial. If that be the real position, namely, that the Court did not finally dispose of the matter, I presume that it would be open to us to dispose Mildly of it now by directing that the petitioner should be retried. But in my judgment it is not necessary to take that course, because, as I have already said, the order did amount to an order that the petitioner should be retried.
11. For these reasons we are of opinion that this Rule should be discharged.
12. I agree.