THADANI C. J. : This is an appeal prefer­red by the State of Assam u/s. 417, Criminal P. C., against an order of acquittal passed by the learned First Class Magistrate of Gauhati in G. R. Case No. 2085 of 1946 in which he acquitted one Dilip Kumar Chatterjee of the offence of criminal breach of trust u/s 408, I. P. C. (2) As we propose to order a re-trial, it is not necessary to set out the facts of the case. We find that the Trying Magistrate has dis­played a complete ignorance of the meaning of S. 342, Criminal P. C. The only question put by the learned Trying Magistrate to the accused was: "What is your reply to the charge brought against you to the effect that you misappro­priated money of Railway Company?" The answer was: "I am innocent." If the learned Magistrate had taken care to refer to Ss. 405 and 408, I. P. C4J he would have realised that the points for determination in a case in which an accused person is sent up for trial under S. 408, I. P. C. are-(1) whether the accused was a clerk or servant; (2) whether in such capacity he was entrusted with property or had dominion over the property, (3) whether the accused dishonestly misappropriated or convert­ed to his own use that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, express or implied, which he has made touching the discharge of such trust or wilfully suffered any other person to do so. (3) The lack of appreciation of the full im­plications of the provisions of S. 342, Cr. P.. C. has resulted in a wholly unsatisfactory judg­ment-a judgment which cannot be properly regarded as a judgment, whether of acquittal or conviction. (4) Recently we had had occasion in - 'Nirmal Prasad v. State', AIR 1952 Assam 2 (A) to remand the case for retrial-a case in which the learned Magistrate had also failed to appre­ciate the meaning of S. 342, Criminal P. C. Magistrates in this State will do well to conform strictly to the provisions of S. 342, Criminal P. C., in order to save time and expense. Generally speaking, they should draw the attention of an accused person, when he is being examined under S. 342, Cr. Generally speaking, they should draw the attention of an accused person, when he is being examined under S. 342, Cr. P. C., to the circumstances appearing against him in the evidence of each witness and ask him for an I explanation, and not merely ask him "what is I your defence?" (5) We draw the attention of Magistrates and Judges to what we have said in -•'AIR 1952 Assam 2' (A): "When a circumstance appears in the evi­dence against an accused person-a circum­stance which the Court considers vital-it is the duty of the Court under S. 342 of the Code of Criminal Procedure, to call the accused's attention to the circumstance and call for an explanation; omission to do so is a departure from the statutory rule, and a conviction based on the accused's failure to explain what he was never asked to explain, is bad in law." These observations apply with equal force to an acquittal where it is based upon rejection of evidence on surmises which might prove to be quite futile if a real attempt had been made by the Magistrate to conform to the provisions of S. 342, Criminal P. C. (6) In the case before us, the entire judgment of the learned Magistrate is vitiated by reason of the fact that the accused person was rot asked to explain the evidence of certain docu­ments which the prosecution alleged the accused had admitted and signed documents which prima facie tend to show that he had failed to account for a sum of Rs. 10000/- odd in respect of which he was sent up for trial under S. 408, I. P. C. (7) The result is that we set aside the acquittal and remand the case for re-trial according to law by another Magistrate having jurisdiction. (8) DEKA J.: I agree. Retrial ordered.