Lancelot Sanderson, C.J.
1. This was a Rule obtained on behalf of Beni Madhub Kundu calling upon the District Magistrate to snow 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 five 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, if 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:
(1) 'That the order of the High Court amounted to an acquittal in law; (2) that this Court not having ordered a re trial, the Court of Session has no jurisdiction to try the petitioner ; and (3) that, at any rate, the order of commitment, dated the 9th November 1917, has expired and the Court of Session hap 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 Appellate Court or committed for trial.'/ Then there is the sub-section which provides that 'Nothing herein 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 be retried, and consequently, inasmuch as the verdict had been set aside, the order of this 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 be 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 re-trial.
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. Bat 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 has 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 re-trial, 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 be 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 finally 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 re tried.
11. For these reasons we are of opinion that this Rule should be discharged.
12. I agree.