- (1.) By the present application under Sections 401 and 397 of the Code of Criminal Procedure read with Section 482 of the said Code, the petitioner/appellant challenges the order dated 15th July, 1999 passed by the learned Additional Sessions Judge, Murshidabad. By the said order, the learned Judge set aside the order of conviction of the appellant/petitioner herein passed by the learned Chief Judicial Magistrate, Murshidabad and directed the Chief Judicial Magistrate, Murshidabad to send the case to the Court of Special Judge having jurisdiction for retrial of the case.
(2.) The impugned order has been challenged by the petitioner on the ground that the order for retrial should not have been passed keeping in view the provisions of Section 386 of the Code of Criminal Procedure, 1973 (the '1973 Code' for short) which deals with the powers of the Appellate Court.
(3.) Mr. Sanyal, the learned Counsel for the petitioner contends that the impugned order passed by the Additional Sessions Judge does not come within the purview of any of the provisions of Section 386 of the 1973 Code. The relevant provisions of Section 386 on which Mr. Sanyal argues are as follows : 386. Powers of the Appellate Court. - After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under Section 377 and Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may (a) ................ (b) in an appeal from a conviction, - (i) reverse the finding and sentence and acquit or discharge the accused, or order him of be retried by a Court of competent jurisdiction subordinate of such Appellate Court or committed for trial, or (c) .................... (d) .................... (e) make any amendment of any consequential or incidental order that may be just or proper.;