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Judgment
Jackson, J.—After reversing a conviction and sentence an appellate Court cannot order an innocent man to be retried without formulating a
charge. In Emperor v. Mohan Singh [1920] 42 All. 522, the learned Judge was careful to formulate a particular charge of forging a receipt; leaving
it open to the lower Court to expand that charge if so advised. But the Court cannot simply say: ""This man shall be charged,"" which ordering retrial
amounts to. An appellate Court must also be careful not to usurp the function of a Public Prosecutor, a matter I discussed in In Re: V.M.
Rathnavelu Mudaliar A.I.R 1930 Mad. 189:
The learned Sessions,Judge came to the same conclusion, observing quite correctly that upon the essential points of the case there is neither
evidence nor finding, and he could not uphold the conviction. Ho considered however that the proper course was to order a retrial. Here it must he
found that the learned Judge exceeded his proper function. In certain circumstances he can no doubt order a retrial u/s 423, Criminal P.C., but
hardly where the prosecution has hopelessly broken in every respect, so is to enable the prosecutor to substantiate some new charge against the
accused, or to produce evidence which might easily have been produced at the first trial. It is rather for supplying formal defects that an appellate
Court orders retrial: see Varadarajulu v. Emperor [1919] 42 Mad. 885.
The petition is allowed and the case sent back to the appellate Court for disposal in the light of the above.