A retrial ordered by an appellate court may commence from the stage of illegality or irregularity, not necessarily from the beginning, and the appellate court's discretion in this regard is not fettered.

The petitioners in these five revisions were prosecuted separately for applying false trade marks, trade descriptions and for selling goods to which a false trade mark or false trade description had been applied, that is to say, for offences punishable under Sections 78 and 79 of the Trade and Merchandise Mark Act, 1958. They pleaded that their prosecutions were barred by limitation under Section 92 of that Act. The learned Additional City Magistrate, Lucknow, who held the trials accepted that plea and consequently ordered their, acquittal. The State filed Criminal Appeals Nos. 60, 61, 62, 63 and 64 of 1967 against those orders of acquittal. The said five appeals were allowed by this Court and the cases were remanded for decision according to law. While doing so, this Court made the following observation :

"I am therefore, of the opinion that in any view of the matter the prosecution was not barred by limitation and the Magistrate was in error in coming to a contrary conclusion. In the concluding paragraph of his judgment, the Magistrate had further observed that no independent witness had been examined by the prosecution to show that any customer was ever deceived and confused while making purchase of the genuine 'Shiv 151 Special' soap and the soap purchased by him was counterfeit. Here the Magistrate entered into wholly irrelevant consideration. Without entering into the merits of the evidence regarding discovery whether the offence charged had been made out against the respondents, he held that the case was not proved against the accused and that they were entitled to acquittal. It is clear that the Magistrate did not discuss the evidence nor base his conclusion regarding proof of the charge framed against the respondents.

In view of my conclusion that there was no bar of limitation and also in view of the above circumstances, the case appears to be a fit one for remand to the Magistrate for its decision according to law. Accordingly the appeals are allowed and the order of acquittal passed by the Magistrate ....... is set aside. The record of the case will be sent to the District Magistrate who shall transfer the case for disposal according to law to any competent Magistrate."

2. After the receipt of the five cases on remand, the successor Additional City Magistrate passed an order on December 26, 1969 for the cases to be listed on January 8, 1970 for the recording of the statements of the petitioners in their separate cases and for the framing of the charges. The cases did not come up for disposal on January 8 but instead on January 20, on which later date, the Public Prosecutor made an application for the decision of the cases on the basis of the evidence already on the record and on the basis of such other evidence as the prosecution might like to adduce. This application was opposed by the petitioners. The learned Magistrate heard arguments and ordered on February 19, 1970 that there was no occasion for recording the statements of the petitioners afresh or for framing of fresh charges and fixed February 24 for arguments.

3. Feeling aggrieved by that order, the petitioners filed five revisions before the Sessions Judge. Lucknow, praying for making reference to this Court for quashing that order. However, the Sessions Judge dismissed these revisions, giving rise to these revisions in this Court.

4. The first contention of the learned counsel for the petitioners is that it is a universal principle of law that, when a matter has been finally disposed of by a Court, the Court is in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for the same relief unless and until the previous order of final disposal has been set aside. This principle, he enunciated by resort to the provisions contained in Section 369. Code of Criminal Procedure, and argued that once the learned Additional City Magistrate had taken a decision on December 26, 1969, that he would record the statements o