Amareshwar Sahay, J.

1. Heard the parties.

2. The prayer of the petitioners in this application is for setting aside the order dated 08.04.2003, whereby the Sub-Divisional Judicial Magistrate, Jamshedpur, rejected the petition under Section 239. Cr PC filed by the petitioners for their discharge.

3. Further prayer has been made to issue direction to the Court below to proceed in the light of the order and direction dated 04.01.2000 of this Court in Cr. Rev. No. 180 of 1996 (R), whereby this Court while allowing the Revision Application against the judgment of acquittal remanded the matter back for retrial, according to law and to decide the same after hearing both the sides.

4. A First Information Report being Mango P.S. Case No. 002 of 1992 was registered under Sections 419, 420 and 498-A of the Indian Penal Code, as well as under Sections 3/4 of the Dowry Prohibition Act against the petitioners. The aforesaid case was tried and by judgment dated 09.07.1996 (Annexure-2), the learned . Sub-Divisional Judicial Magistrate acquitted the accused persons i.e. the petitioners herein from the charges, after holding that the prosecution failed to prove its case beyond the shadow of all reasonable doubts.

5. The informant-Opposite Party No. 2, Taruna Mishra challenged the said judgment of acquittal in Cr. Rev. No. 180 of 1996(R) before this Court and by judgment dated 04.08.2000 (Annexure 3) this Court allowed the Revision Application and set aside the judgment of acquittal and remitted the matter back to the Court below for re-trial according to law.

6. After the remand, the accused-petitioners appeared before the Trial Court and filed a petition under Section 239 of the Cr PC for their discharge, which has been rejected by the learned Sub-Divisional Judicial Magistrate, Jamshedpur by the impugned order dated 08.04.2003.

7. From perusal of the impugned order, it appears that the learned Sub- Divisional Judicial Magistrate has rejected the prayer of the petitioners on the ground that the High Court in its judgment in Revision held that the Trial Court did not consider and assess the entire evidence on record in proper way and thereby remitted the matter back to the Trial Court for retrial.

8. It was further held by the learned Sub-Divisional Judicial Magistrate, Jamshedpur that the re-trial as ordered by the High Court meant the re-trial i.e. the stage from which the illegality has been committed and not from the stage, the trial had started, therefore, at the stage the petitioners cannot be discharged.

9. Learned counsel appearing for the petitioners Mr. P.P.N. Roy relying on a decision in the case of Krishna Dhan Mandal and Ors. v. Queen Empress, reported in, ILR XII Calcutta 377, has submitted that the findings of the learned Magistrate and rejection of the petition of the petitioner under Section 239, Cr PC is against the judgment of the High Court, wherein, there was an order for re-trial and the re-trial would mean the re-trial of the whole case from the stage of the charge.

10. On the other hand, Mr. A.K. Chaturvedi, learned counsel appearing for the opposite party No. 2 in support of the impugned order has submitted that since the High Court in the Revision against acquittal held that the Trial Court did not consider the evidence on record properly and, therefore, the matter was remanded back to the Trial Court and, as such, the Trial Court was only to assess and appreciate the evidence on record and then had to decide the case and, therefore, the learned Sub-Divisional Judicial Magistrate was absolutely right in rejecting the prayer of the accused for their discharge.

11. In order to appreciate the rival contentions of the parties, it is relevant to quote the concluding part of the judgment of this Court in the Criminal Revision. Paragraph 9 of the judgment of this Court in quoted hereinbelow :-

"It is true that this Court does not ordinarily interfere with the judgment of acquittal and interference with the judgment of acquittal is