IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 53 of 2005 Manoj Singh Kunwar and another …… Petitioners Versus State of Uttarakhand …. Respondents Mr. Mohan Chandra Pande, Advocate for the petitioners. Mr. Amit Bhatt, Addl. G.A for the State. Hon’ble J.C.S. Rawat, J. Mr. Mohan Chandra Pande Advocate for the petitioners. Mr. Amit Bhatt, Addl. G.A. for the State. 2. The petition u/s 482 Cr.P.C. has been filed for quashing and setting aside the order dated 31/12/2004 passed by the learned Sessions Judge in Criminal Appeal No. 11 of 2004 passed in respect of the present petitioners who had been acquitted by the trial court. The learned Sessions Judge vide its appellate order directed for the retrial of the case passed by the learned Magistrate after setting aside the order of the learned Magistrate. The State has not filed any appeal or revision against the order of the learned Magistrate acquitting the petitioners. Accused Ramesh Giri, Manju Devi, Vijendra Lal, Manoj Kunwar, Constable Keshar Singh, Constable Bahadur Ram and Constable Mehendra Singh were charged u/s 308 read with 120-B, 454 read with 120-B, 414 and 411/201 I.P.C. After conclusion of the trial, the learned Magistrate convicted the accused Ramesh Giri u/s 411 and 201 I.P.C. whereas the accused Manju Giri was convicted u/s 201 I.P.C. The rests of the accused were acquitted by the trial court. The present petitioners are among the persons who were acquitted by the trial court. 3. The convict Ramesh Giri and Manju Devi preferred the appeal against their conviction before the learned Sessions Judge. The State has not filed any appeal against the acquittal of the rests of the co- accused before the High Court. The appeal preferred by accused Ramesh Giri and Manju Devi was allowed by the learned Sessions Judge and the case was remanded to the Court of Sessions by setting aside the entire judgment of the trial court. The learned Sessions Judge directed that the appellants and the co-accused who had been acquitted by the trial court be tried again in the said trial. 4. The learned counsel for the petitioners contended that the State had not filed any appeal against the acquittal pronounced by the learned Magistrate; the Sessions Judge could not direct the trial of the accused who had been acquitted by the learned Magistrate; the accused have acquired a valuable right and they could not be tried unless their acquittal would have been set aside by the competent court on a motion of the state; and the direction given by the learned Sessions Judge is perverse & against the law. 5. It is very surprising that the learned Sessions Judge without affording any opportunity to the persons against whom the acquittal has attained the finality directed the Magistrate for the retrial of persons who have been acquitted by the trial court. It is a settled principle of law that if the accused has been acquitted & his acquittal has attained the finality and the State has not preferred any appeal against his acquittal, his rights become absolute not to be tried again. The order of the learned Sessions Judge is patently illegal and against the settled principle of law. 6. This petition has been preferred by the petitioners Manoj Singh Kunwar and Brijender Lal who had been acquitted by the trial court and against whom no appeal was preferred by the State. There were more co-accused, namely, Constable Keshar Singh, Constable Bahadur Ram and Constable Mehendra Singh alongwith the petitioners who had been acquitted by the trial court and the learned Sessions Judge directed the learned Magistrate that they should be tried again. It is not disputed that the State has not preferred any appeal against their acquittal. Learned Sessions Judge directed the learned Magistrate that the persons already acquitted be retried which in itself perverse and against the settled principle of law. By applying the principle of stare decisis, the benefit of the present petitioners would also be extended to those who had been acquitted by the trial court and had not preferred the petition before this court. Thus, the judgment of the learned Sessions Judge is liable to be set aside to the above extend and is hereby set aside to the above extent. The order of re-trial of the two accused, namely, Ramesh Giri and Manju Devi who have been convicted by the trial court would remain intact and trial would proceed against them in the trial court. 7. In view of the above, the petition is allowed to the above extent. The impugned order dated 31/12/2004 passed by the learned Sessions Judge in Criminal Appeal No. 11 of 2004 is set aside to the above extent. (J.C.S. Rawat, J.) 24.12.2008 Shiv