Hugh Walmsley, J.
1. The facts necessary for the decision of this appeal are as follows: Sadir Sheikh was tried upon a charge under Section 366, Indian Penal Code, before the Assistant Sessions Judge of Mymensihgh: he was convicted and sentenced to under go three years' rigorous imprisonment. He preferred an appeal and the learned Sessions Judge set aside the conviction and sentence on the, ground that the Trying Judge had not complied with the provisions of Section 360, Cr.P.C.
2. The case was fixed for fresh trial on October 29th. On that date no witnesses were present, and the heating was adjourned to next day. Again there were no witnesses present. The learned Judge then refused to grant any further adjournment: he then called upon the accused to plead, and empanelled a Jury: he then directed the Public Prosecutor to open the case, and the latter did so under protest, and informed the Court that he had no witnesses present to support the case for the prosecution. Thereupon the learned Judge directed the Jury to 'return a verdict of 'not guilty,' and after that verdict had been returned he acquitted the accused.
3. It seems to me clear that the learned Judge exercised his discretion unwisely both on the first day and the second day. He must have realised that some one had blundered and that the witnesses could not be collected and sent to his Court at less than a day's notice. He should have ascertained what had happened and should have granted a reasonable, adjournment.
4. It is said, however on behalf of the accused that the Cr.P.C. gives us no authority to interfere with the verdict and the, order of acquittal. Our attention is drawn to the words of Section 423(2) of the Code, and it is urged that there was no misdirection by the Judge, and, therefore, we cannot disturb the verdict of the Jury. I do not agree with this argument for this reason, that the Public Prosecutor did not say that he had no evidence to offer or that he did not intend to offer any evidence: his attitude throughout was that he had witnesses who would substantiate the case if further opportunity were allowed to him, and I think that in such circumstances it was a misdirection for the Judge to tell the Jury that there was no evidence and that they should return a verdict of 'not guilty'.
5. I, therefore, set aside the verdict of not guilty and the order acquitting the accused, and direct that he be tried in accordance with law.
6. I agree.