JUDGMENT Cunliffe, J. - In this case a Rule nisi was obtained in the following circumstances: Certain persons were put upon their trial before the Sessions Judge [ Obviously a slip for "Assistant Sessions Judge." --Reporter] on a variety of different charges. As a result, the Sessions Judge [ Obviously a slip for "Assistant Sessions Judge." --Reporter] who was sitting with a jury, found these persons guilty on some of the charges and not guilty on the others and on those charges on which they were found guilty, the Sessions Judge passed sentences upon them. The accused persons preferred appeals and when the appeals were heard, the order of the Court was that they should be sent back for retrial by another Judge. When this order reached the Judge who conducted the retrial, it was directed that the accused should be put upon their trial not only on the charges which had been the subject of the appeal but on the other charges upon which they had been acquitted. It is argued that this procedure is in accordance with law and practice. But the decisions appear to me to be conflicting and different Judges seem to have interpreted the combination of the principles laid down in secs. 403 and 423 of the Code of Criminal Procedure in a different manner. To my mind, it is a monstrous thing that persons in such circumstances should not be protected by the rule of the old plea of autre fois acquit which has been embodied in our Code of Criminal Procedure in sec. 403. I suppose that the argument really is that the plea can only be set up in bar in what are entirely separate proceedings initiated de novo with no connection with. their former trial and that where we have inter-connected proceedings in the sense that they are not yet over and are, as far as the appeals and redirections contained in the order of the Appellate Judge, part of one and the same proceeding, the principle should not be invoked. I should want a very strong authority to make me hold that and without going into the various cases that have been cited to us, I am not satisfied that the strongest case on which the Crown relies, really decides the exact point in issue. I should want a very strong authority to make me hold that and without going into the various cases that have been cited to us, I am not satisfied that the strongest case on which the Crown relies, really decides the exact point in issue. There is a decision of a Bench of this Court which is exactly cognate in its facts to the position in this case. That is the decision in the case of Nitya Gopal Sadhu v. Emperor 38 C.W.N. 1128 (1934). It is a short judgment and the head-note runs as follows:-- A Sessions) Judge, 'ordering a retrial of a case in which the accused had been acquitted of charges under secs. 379 and 477, I. P. C. but convicted under sec. 120B, by an Assistant Sessions Judge, in agreement with the verdict of the Jury, cannot order a retrial in respect of offences of which the accused had been acquitted. That decision seems to be both good law and good sense. There is another case to which we have been referred, in which the two learned Judges, who formed the Bench, appear to have been divided in their opinion. But Mr. Justice Lort-William's, who took the view that we are adopting here, held that. When an accused is tried by Jury under two charges and on being acquitted under one and convicted under the other, he appeals and on such appeal his conviction and sentence are set aside and a retrial ordered, such order cannot cover or authorise a retrial under the charge of which the accused was acquitted and retrial under that charge is illegal. 2. The facts in this case [Abdul Khan v. Emperor 29 C.W.N. 677 (1935)] were sufficiently striking, because the Appellant there was actually acquitted on a charge of murder and it was attempted once more to put him on his trial for the capita) offence under the order of the lower Appellate Court. In my view, this is repugnant to the ordinary sense of justice and, furthermore, is contrary to public policy. For these reasons, the Rule before us now should be made absolute and the retrial with which this case is concerned will be limited to a retrial on the charge or charges under which the appeal is preferred. The trial on the other charges which have been the subject already of an acquittal will be excluded. 3. For these reasons, the Rule before us now should be made absolute and the retrial with which this case is concerned will be limited to a retrial on the charge or charges under which the appeal is preferred. The trial on the other charges which have been the subject already of an acquittal will be excluded. 3. With regard to the other Rule viz., 1071/35, I understand that that is no longer pressed. It was a Rule which asked for a quashing of the proceedings and consequently this Rule nisi must be discharged. Henderson, J. The question whether a Sessions Judge, hearing an appeal by a person convicted at a trial by an Assistant Sessions Judge and a jury, has power to reverse an order of acquittal and order a retrial is not free from difficulty. If he has such power, it must be deduced from the wording of sec. 423 of the Criminal Procedure Code. I should find it myself difficult to deduce any such meaning and I should not be prepared to arrive at any such decision without further consideration. But in my opinion, the point does not arise in the present case. The fact remains that the learned Sessions Judge did not order a retrial on the charges on which the Appellants had already been acquitted. We were told by Mr. Dutt for the Crown that he did so by implication. From this point of view, reliance was placed upon the case of Nazimuddin v. Emperor ILR 40 Cal. 163 (1912). If we were to apply that case, there can be no question that the learned Sessions Judge had no discretion at all, but was automatically bound to order a retrial, whether he thought fit to do so or not. But on looking at the case, I am not sure that any order of acquittal had been pronounced in the lower Court at all, with the result that the present point did not arise for decision. I do not suppose it ever entered the head of the Sessions Judge that he should order a retrial on these charges when he was not dealing with that matter and I cannot possibly read into his order any such meaning. It seems to me that if the prosecution want a retrial on all the charges, they must produce a specific order to that effect.