JUDGMENT

D.S. Mathur, J. - This is an appeal by special leave against the order dated 27-7-1964 of the III Additional Sessions Judge, Meerut, allowing the appeal of Aman Singh and four others, Respondents and acquitting them of the charges of which they have been convicted by the Magistrate. Each of the Respondents was convicted under Sections 147 and 323 read with Section 149 of the Indian Penal Code but they were ordered to be released on probation of good conduct for one year.

2. The litigation had a chequered history. It was started on the complaint of Abhey Ram, father of Ved Prakash and Sri Prakash, Appellants, made on the 22nd of December, 1960. On 13-9-1961 the Magistrate acquitted Lal Singh, Respondent No. 6 of all the charges and Respondents 2 to 5 of the charges u/s 147 and (149) IPC. The Magistrate, at the same time, ordered that the remaining case u/s 323 IPC against Respondents NO. 1 to 4 shall be sent to the Nyaya Panchayat concerned for hearing. This order was challenged before the High Court in Criminal Appeal No. 200 of 1962. This Court did not go into the merits of the case and merely allowed the appeal and after setting aside the order bf acquittal, directed retrial in accordance with law by some Magistrate other than Sri Anup Singh. The case then came up for hearing before Sri P.C. Jajn, Magistrate who under order dated 21-4-1964 convicted the Respondents of the offences detailed above but released them on probation of good conduct. The five Respondents preferred an appeal, registered at No. 310 of 1964, before the Sessions Judge of Meerut. The III Additional Sessions Judge has allowed the appeal on the ground that the evidence adduced before the retrial could not be taken into consideration being inadmissible u/s 33 of the Evidence Act and as no evidence had been adduced during the retrial, there was, in the eye of law, no evidence against the Respondents and they could not be convicted of any offence.

3. Two points arise for consideration whether the evidence before the remand of the case can be taken into consideration during the retrial and secondly, if the retrial involves fresh recording of evidence, can the order of conviction be set aside simply because during retrial the fresh recording of evidence was necessary?

4. It is u/s 423 of the Code of Criminal Procedure that the appellate Court can order a retrial. Section 423 Code of Criminal Procedure, does not contain any provision similar to Order 41, Rule 23 Code of Civil Procedure, whereunder after remand, the evidence already recorded forms part of the record. Consequently, it can be said that if in criminal case a retrial is ordered, without any condition being imposed or observations being made by the appellate court, there must be a fresh hearing from the initial stage. This can find support from the wording of Section 350 Code of Criminal Procedure Prior to the amendment of this section under Act XXVI of 1955 the accused person could demand the rehearing of the case even though part of the evidence or the whole of it had been recorded by the previous Magistrate. The rehearing implied the hearing of the case from the initial stage. Even now of the transfer of a Sessions, Judge there has to be a rehearing of the Sessions case. The word 'rehearing' is similar to retrial and consequently on the strict interpretation of the provisions of the Code, it can be said that where the appellate court simply orders retrial without indicating from what stage the fresh trial shall commence, there must be a fresh trial from the very beginning and the evidence already recorded, prior to the remand, cannot be taken into consideration.

5. But there is a protective clause contained in Section 537 Code of Criminal Procedure. The Code of Criminal Procedure speaks of an irregularity which includes an illegality. Consequently, if the irregularity is covered by Section 537 Code of Criminal Procedure the finding, order or sentence cannot be set aside or altered on the ground