( 1 ) THIS matter has been laid before me under the provisions of Section 429, Criminal P. C. read with Section 439 (1) of the same Code, as Mitter J. and Sen J. who heard the Rule could not agree as to how it should be disposed of.

( 2 ) THE Rule was issued on the application of Indra Kumar Nath, an accused in a case pending before the Assistant Sessions Judge, Krishnagar, calling upon the District Magistrate of Nadia to show cause why the case should not be transferred from the Court of the Assistant Sessions Judge before whom it was pending to the District and Sessions Judge, Nadia or in the alternative why the proceedings pending against him should not be quashed or such other or further orders passed as the Court might think fit and proper.

( 3 ) THE petitioner was first tried by the same Assistant Sessions Judge with the aid of a jury on a charge under Section 304, Penal Code. In accordance with the unanimous verdict of the jury that he was not guilty under Section 304, Penal Code but was guilty of the minor offence under Section 325, Penal Code, the learned Judge acquitted him of the charge under Section 304 taut convicted him under Section 325, Penal Code and sentenced him to rigorous imprisonment for three years. The petitioner appealed against this order of conviction and sentence to the Sessions Judge. The Sessions Judge came to the conclusion that it was impossible to maintain the conviction of the appellant and the sentence passed upon him; that the defects and irregularities pointed out were serious misdirections which vitiated the verdict of the jury, but holding that this was a case where a retrial should be ordered, he passed the following order: "in the result, the appeal is allowed. The verdict of the jury and the conviction and sentence which followed thereupon are set aside. I direct that the appellant be retried according to law by the learned Assistant Sessions Judge, Nadia. The accused appellant will remain on the same bail until the conclusion of the fresh trial. "

( 4 ) AFTER the case went back to the learned Assistant Sessions Judge and the retrial commenced, the learned Judge framed a charge under Section 304, Penal Code and empanelled the jury after rejecting certain objections to some jurors raised on behalf of the petitioner. At this stage an application under Section 526, Criminal P. C. was filed before the Judge. The learned Judge adjourned the case in order to give the accused an opportunity to move the higher Courts for transfer. An application was then made before the learned Sessions Judge, Nadia for transfer of the case from, the Assistant Sessions Judge's file to his own file. The learned Sessions Judge refused the application holding that there was no substance in the allegation that the accused could not expect a fair trial in the Court of the Assistant Sessions Judge. He also held that"when the conviction and sentence were set aside and a retrial was ordered the whole matter must be deemed to have been reopened unless any limitation or restriction in this behalf was imposed by the order of the appellate Court. No such limitation has been pointed out to me and I may observe that the discretion in the matter of framing a proper charge against the accused in a Sessions trial should be left with the trying Judge. "

( 5 ) MOVING this Court for exercise of its revisional powers under Section 439, Criminal P. C. , the petitioner prayed that the case should be transferred from the Court of the Assistant Sessions Judge to the Court of the Sessions Judge and also that the charge under Section 304, Penal Code should be quashed. The Rule that was issued was, as I have already mentioned, in slightly wider terms.

( 6 ) BOTH the learned Judges agreed that there was no case made out for transfer from the Court of the Assistant Sessions Judge. They disagreed, however, on the question whether the retrial of the petitioner could, in law, be on a charge under Section 304, Penal Code of which he had bee

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