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PETITIONER: AVTAR  SINGH & ORS. ETC.HARENDRA SINGH AND ANR.

       Vs.

RESPONDENT: BHAJAN SINGH & ORS. ETC.STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       27/11/1997

BENCH: G.T. NANAVATI, V.N. KHARE

ACT:

HEADNOTE:

JUDGMENT:               THE 27TH DAY OF NOVEMBER, 1997. Present :                Hon’ble Mr. Justice G.T. Nanavati                Hon’ble Mr. Justice V.N. Khare U.R.Lalit, Sr. Adv., Ranjit Kumar, Chandra Bhushan pd., Anup G. Choudhary,  Ashok Kr. Singh, U.N. Singh, P.N. Gupta, H.S. Paul, J.  Buttar, Alok  Mahajan,  Advs.  with  him  for  the appearing parties.                       J U D G M E N T      The following Judgment of the Court was delivered:               WITH CRIMINAL APPEAL NO. 738/91 Nanavati. J,      The three  appellants were  tried  alongwith  13  other accused for various offences alleged t o have been committed by them  one of  them being  the  offence  punishable  under Section 302  IPC. The  trial court convicted appellant No. 1 only and  acquitted the  other accused  including  appellant Nos. 2  and 3.  Against his  conviction, appellant No. 1 has filed an  appeal in  the High Court and it is still pending. Against the  acquittal of  appellant No.  1 for  the offence punishable under  Section 302  and against  the acquittal of 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  After  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 the  appellant No. 1 is pending in the High Court, we  do not  propose to  say anything also except that the order  passed by  the High  Court is clearly illegal. As retrial could  not have  been ordered  without setting aside

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the order of the trial court, on that short ground alone, we allow this  appeal and  set aside  the judgement  and  order passed by the High Court.      In view  of this order, Crl. A. No. 738/91 preferred by appellant Nos.  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 No. 1 and dispose of the same on merits.