ORDER Sadasiva Aiyar, J. 1. Unless the appellate Magistrate found some material already on record tending to indicate that the house was a common gaming house are unless the Magistrate was given by the prosecution assurance of sufficient weight indicating that there would be produced practically unimpeachable evidence that the gaming took place in a common gaming house, if a retrial was ordered, he ought not to have sent back the case for retrial and ought to have acquitted the accused in the absence of evidence to show that the house where they were found gaming was a common gaming house, that is, a house kept by the owner of it for profit and to be used by the public indiscriminately (or practically indiscriminately) for gaming purposes. 2. So much of the order of the Lower Court as directs a retrial is quashed. A similar order is made in the connected petition.