ORDER

Dalal, J

1. This revision has been referred be a Bench of two Judges by a learned Judge of this Court for decision as to the powers of an appellate Court u/s 406 of the Code of Criminal Procedure. The applicants were bound over by a Magistrate of the First Class of Benares to keep the peace. They appealed to the Court of Session which directed that the order binding over the applicants should be reversed and that there should be a retrial. The question is whether the appellate Court has the power u/s 423 of the Code of Criminal Procedure to order a re-trial. The authority given to an appellate Court is contained in Clauses (c) and (d). In an appeal from an order the appellate Court may alter or reverse such order and may make any amendment or any consequential or incidental order that may be just or proper. Under Clause (b) in an appeal from a conviction the appellate Court is specifically given the power of ordering a re-trial. The distinction exists for a very obvious reason. u/s 403 a person once convicted or acquitted cannot be tried for the same offence, and in an appeal from a conviction, if the conviction is reversed, the appellant may claim that he has been acquitted an