Bhaiyalal Khubchand and Others vs King-Emperor

Hemeon, J.—The six applicants, who had been called upon to show cause u/s 107, Criminal P.C., by the First Class Magistrate, Bilaspur, duly filed their written statements denying the allegations made against them and the case was fixed for 6th January 1943 for the evidence of the prosecution witnesses. On that date, however, the applicants presented an application in which they voluntarily agreed to execute the bond required by the preliminary order and the First Class Magistrate concerned passed an order in those terms. In spite of this, the applicants appealed to the Additional Sessions Judge, Bilaspur, and he remanded the proceedings for retrial from the stage prior to the passing of the trial Court''s order, on the ground that in such proceedings an enquiry must be held before the final order can be passed.

The applicants have now come in revision to this Court on the grounds that the appellate Court had no jurisdiction to remand the ease for retrial and that the order for retrial was not warranted by S, 423, Criminal P. 0. and was illegal. In other words, the applicants claim that the proceedings should be quashed ab initio.

In Dayanath Taluqdar v. Emperor, 33 cal 8 : 3 Cri. L.J. 248 a Division Bench held that a District Magistrate has no power under the law to order a further enquiry in a proceed, ing u/s no, Criminal P. C, after setting aside, on appeal, an order passed by a subordinate Magistrate directing the accused to furnish security for good behaviour. In In Re: Narappa Reddy and Others, , Burn J. was of the view that when an appeal is preferred from an order u/s 107, Criminal P. 0., the appellate Court has no juris, diction to order a de novo trial; and in AIR 1942 416 (Oudh) Bennett J. held that it is not competent to a Court hearing an appeal from an order passed u/s 107, Criminal P, C, to order a retrial.

In Bhagwat Singh and Others Vs. Emperor, , however, a Division Bench decided that it is competent to a Court hearing an appeal in a case under a. 107, Criminal P. C, to direct that the case before it be retried, as the order for re-trial is an incidental order following on the reversal of the order which bound over the applicant. This rule was followed in Subegsingh v. The Crown, I. L. R. (1943) Lah. 365 : AIR 1942 Lah. 84: 43 Or. L. J. 564 by a Division Bench which dissented from the view taken in Narappa Beddy, In re, A. I. R. 193d Mad. 202 : 34 or. L.J. 947 In the Lahore case Blacker J. made the following observations with which I am in respectful agreement:

It is obvious that if in the case of a person, who prima facie ought to be bound over, the order has to be reversed on account of an illegality in the proceedings, the appellate Court has to apply its mind to the question whether there should be a de novo enquiry or not, and, as pointed out by the Allahabad Court, it would then pass an order incidental to its order reversing the order for security by which it would direct either that there should be a de novo enquiry, as in this ease, or, if the matter had become stale or for any other reason, that there should not be a de novo enquiry.

On this view, the order of the learned Additional Sessions Judge was a proper order and it is maintained.

The application is dismissed.