Full Judgment
P. Govinda Menon, J.
1. The only question that is argued in this revision petition is as to the legality of the order of the District Magistrate, Ernakulam, quashing the conviction of the petitioner and directing retrial from the stage at which the procedure adopted by the lower Court was held to be detective.
2. The petitioner was convicted under Section 294(b), I.P.C. and sentenced to pay a fine of Rs. 10/- by the Second Class Magistrate, Ernakulam. On appeal it was contended that the accused was prejudiced because he was not personally questioned under Section 342, Cri, P.C., but only the accused's counsel was questioned; and also that the accused was not given an opportunity to adduce defence evidence. The learned District Magistrate held that this has Caused prejudice to the accused and therefore the conviction and sentence were set aside and the Magistrate was directed to question the accused personally on the evidence and circumstances appearing against him and to permit him to examine defence witnesses.
3. It is argued by the defence counsel that after quashing the conviction the learned District Magistrate ought to have directed a retrial of the entire case and that the Court has no power to order what has been described as a 'partial retrial'.
4. Section 423(1)(b), Crl. P.C. says that the Court 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 order his commitment for trial.
The words in Section 423, Crl. P.C. I think, are, sufficiently wide to authorise a retrial from the point at which the error or illegality in the trial has been committed. Support for this position can be had from the decisions in Motan Khan v. Emperor AIR 1927 Sind 175 and Virumal Seoomal v. Emperor AIR 1941 Sind 144.
5. In Emperor v Nathu Kasturchand ILR 50 Bom 42 : AIR 1925 Bom 170 where the Magistrate had failed to comply with the provisions of Section 342, Crl. P.C. though no retrial was ordered, in that case Macleod, C.J., was of the opinion that a retrial could have been ordered from the stage at which the error in the trial had been committed.
6. Reference may also be made to the case in Dibakanta Chatterjee v. Gour Gopal Mukherjee ILR 50 Cal 939 : AIR 1923 Cal 727, where because of the failure to comply with the provisions of Section 342, Crl. P.C. a retrial from the point at which the error had been committed was ordered by the Court.
7. I am in respectful agreement with this view. The learned Counsel for the petitioner has brought to my notice a decision in Ramchandra Prasad v. Emperor AIR 1937 Pat 246 where It was held that a partial retrial cannot be directed by the appellate Court relying on an earlier decision of the same Court in Gajanand Thakur v. Emperor AIR 1916 Pat 219, I find myself unable to subscribe to this view. No other point is pressed in this petition.
The revision petition is dismissed.