ORDER J.N. Takru, J. - Raghubar Dayal has filed this revision against his conviction and concurrent sentences of six months' rigorous imprisonment u/s 60(a) and the same sentence u/s 60(f) of the UP Excise Act. 2. The case for the prosecution is that on 23-8-1964, the Excise Inspector B.T. Pirti raided the Applicant's house in Mohalla Vijaipur Reti, Shahjahanpur city, and recovered 7 1/4 bottle of illicit liquor and two patilis, two drums and two digris alleged to be used for illicit distillation from a locked room of his house. Hence his prosecution Under Sections 60(a) and 60(f) of the UP Excise Act. 3. The Applicant denied the prosecution allegations regarding the search and the recovery. According to him on the date and time in question he had gone for a bath to the Ganges and on his return to home he found the lock of his house broken and some of his possessions missing. Both the prosecution and the Applicant led evidence in support of their respective versions, but as this revision is likely to be allowed on a legal point--to be indicated presently--it is unnecessary to make any reference to that evidence. 4. It appears that the Magistrate who initially tried the Applicant found him guilty under both the counts. The Applicant went up in appeal to the lower appellate court. That court allowed his appeal, set aside his conviction and sentence and remanded the case to the trial court with the direction that it should give an opportunity to the prosecution to prove the test report of the Excise Inspector and the Applicant an opportunity to produce such additional evidence as he may chose to produce. On remand, the learned Magistrate, who was different from the one who tried the Applicant on the earlier occasion, recorded the evidence of the Excise Inspector for the prosecution and the evidence of two witnesses for the Applicant. Thereafter on a consideration of the entire evidence, including the evidence recorded by his predecessor-in-office, he came to the conclusion that the prosecution had succeeded in proving its case. He therefore convicted and sentenced the Applicant to consecutive sentences of six months' R.I. u/s 60(a) and 6 month,' R.I. u/s 60(f) of the UP Excise Act. On appeal the lower appellate court affirmed the conviction of the Applicant under both the counts, but ordered the sentences to run concurrently. Hence this revision. 5. He therefore convicted and sentenced the Applicant to consecutive sentences of six months' R.I. u/s 60(a) and 6 month,' R.I. u/s 60(f) of the UP Excise Act. On appeal the lower appellate court affirmed the conviction of the Applicant under both the counts, but ordered the sentences to run concurrently. Hence this revision. 5. On behalf of the Applicant, his Learned Counsel Sri B.C. Saxena, strenuously contended, that as the earlier order of the lower appellate court setting aside the Applicant's conviction and sentence, and directing the trial court to record fresh evidence and to decide the case on that fresh evidence as also the evidence already on the record, was illegal and tended to prejudice the Applicant, his conviction and sentence could not stand and were liable to be set aside. Reliance for this proposition was placed on the decision of this Court in Lallu v. State 1955 NUC (All) 5815: for full report see judgment in Cr. Rev. No. 1640 of 1953 decided on 24-8-1955. After hearing the Learned Counsel for the parties I am satisfied that Sri Saxena's contention is well-founded, and the decision relied upon by him fully supports it. In this case Ray, J. had to consider the same point which has been raised by Sri Saxena in; this case. The learned Judge after considering the relevant provisions of Sections 423 and 428 Code of Criminal Procedure and the authorities bearing upon that point, held that; the procedure adopted by the lower appellate court in remanding the case for disposal on the basis of fresh evidence and the evidence already recorded was wholly illegal and unwarranted. So far as Section 423 Code of Criminal Procedure was concerned he held that: In an appeal from a conviction the appellate court may reverse a finding and sentence and acquit or discharge the accused or order him to be retried by a court of competent jurisdiction subordinate to such appellate court. A retrial necessarily imposes; a condition that the trial should be from its inception and not a partial trial. As far Section 428 Code of Criminal Procedure he held that: In dealing with an appeal the appellate court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magistrate.... As far Section 428 Code of Criminal Procedure he held that: In dealing with an appeal the appellate court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magistrate.... When the additional evidence is taken by the Magistrate, he shall certify such evidence to the appellate court and such Court shall there-upon proceed to dispose of the appeal. It does not contemplate the case of an appeal being allowed and thereafter a direction given to the Magistrate to record fresh evidence. 6. It was on this construction of the two material sections of the Code of Criminal Procedure that he (Roy, J.) held that the procedure adopted in that case which was the same as that adopted in the instant case was "un-warranted by law and wholly illegal." On the question, whether, in the circumstances aforesaid the ordering of a fresh trial would occasion prejudice to the accused he held that where the trial was not conducted in the manner provided by law, it was reasonable to infer that the trial would cause prejudice It is unnecessary to dilate any further upon this question of law as I find myself in respectful agreement with the view expressed above and have nothing to add to it. It is, therefore, obvious that the judgment and order of the lower appellate court cannot be sustained. 7. The next question which falls for consideration is whether the circumstances of this case justify an order for retrial. Learned Counsel contended that as the Applicant is an old man and has already suffered two prosecutions and imprisonments in between, he should not be made to undergo a third prosecution. In my opinion this contention has great force and I accept it. The result thereon is that the conviction and sentence of the Applicant are set aside and his revision is allowed. The Applicant was granted bail for the pendency of his revision. He need not surrender and his bail bonds are hereby discharged.