The expression does not exclude the Magistrate who originally tried the accused if he was otherwise competent to try - Fakir 1952 Cr LJ 1352 (Kuch). Whether a retrial before the same Magistrate is expedient for the ends of justice or not is to be considered from the point of view of the accused persons as well.

Under Section 386 CrPC, the Appellate Court can commit a case to the Court of Session or direct the trial by a competent court subordinate to it, and under Section 409, the superior court is empowered to transfer the case to itself for trial - Ramaswamy 50 CrLj 581 (MAD).

If the Appellate Court finds that the accused had committed an offence triable by a Magistrate of the First Class but has been tried by a Second Class Magistrate through oversight or misappropriation, the appellate court may order the accused to be retried by a competent magistrate to try the offence, i.e., by a First Class Magistrate - Sukha ILR 8 ILR (1893-1900) 238.

If an order for retrial is made by the HC and it is not stated in the order whether the retrial is to be held by the same Magistrate or by some other Magistrate, then it should not be presumed that it was the intention of the HC to direct that the retrial should be held by the same Magistrate. Under these circumstances, the matter is left entirely to the discretion of the Magistrate who has to appoint the court by which the case is to be tried.

The appellate court may order the retrial to be held by any court of competent jurisdiction. The HC has the power under this section to order a rehearing of the appeal by the lower appellate court - Chanda 13 Cr LJ 737.