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Judgment
Nanavati, J.—The three appellants were tried along with 13 other accused for various offences alleged to have been committed by them, one of them being the offence punishable u/s 302 IPC. The trial court convicted Appellant 1 only and acquitted the other accused including Appellants 2 and 3. Against his conviction, Appellant 1 has filed an appeal in the High Court and it is still pending. Against the acquittal of Appellant 1 for the offence punishable u/s 302 and against the acquittal of the rest of the accused, Bhajan Singh and Pritam Singh, who are original informant and his brother, respectively, filed a revision petition before the High Court.
It appears that the appeal and the revision petition were heard together and the judgment in both the cases was reserved. Thereafter, the High Court thought it fit to dispose of the revision petition filed by Bhajan Singh and Pritam Singh but kept the appeal filed by Avtar Singh pending till the retrial ordered by the High Court is over. Therefore, the three accused against whom an order of retrial is passed have approached this Court.
It is contended by the learned counsel for the appellant that the order passed by the High Court is illegal inasmuch as retrial could not have been ordered without setting aside the judgment passed by the trial court. As the appeal filed by Appellant 1 is pending in the High Court, we do not propose to say anything else except that the order passed by the High Court is clearly illegal. As retrial could not have been ordered without setting aside the order of the trial court, on that short ground alone, we allow this appeal and set aside the judgment and order passed by the High Court.
In view of this order, Criminal Appeal No. 738 of 1991 preferred by Appellants 2 and 3 will not survive. Both the appeals are disposed of accordingly.
The High Court shall now proceed to hear the appeal filed by Appellant 1 and dispose of the same on merits.