Madhya Pradesh : Indore Bench H.C : This revision under s. 397/401, of the Cr. PC, is directed against the judgment dt. 12th Nov., 1997, passed by the Sixth Addl. Sessions Judge, Indore, in Cr. Appeal No. 406 of 1996 setting aside the conviction and sentence recorded by the A.

Counsel Appeared

S.K. Jain, for the Petitioner : V.K. Jain & Desai, for the Respondents

JUDGMENT

N.K. JAIN, J. :

This revision under s. 397/401, of the Cr. PC, is directed against the judgment dt. 12th Nov., 1997, passed by the Sixth Addl. Sessions Judge, Indore, in Cr. Appeal No. 406 of 1996 setting aside the conviction and sentence recorded by the A. C. J. M. Indore, in Criminal Case No. 21 of 1986 and remanding the case back to the trial Magistrate for decision afresh.

The petitioners were convicted by the trial Magistrate on the charges under ss. 276C, 277 and 278B of the IT Act, 1961, and sentenced to various sentences. The appellate Court below us, however, found that all the aforesaid sections have been inserted in the Act of 1961 by Amendment Act of 1975, w.e.f. 1st Oct., 1975, and since the offences alleged against the petitioners were prior to 1st Oct., 1975, their conviction for the said offences was contrary to law. With this finding, the appellate Court below has remanded the case back to the trial Magistrate for decision afresh.

I have heard Shri S. K. Jain, learned counsel for the petitioners, Shri V.K. Jain, learned counsel for respondent No. 1-Union of India, and Shri Desai, learned Government advocate for respondent No. 2—State of M. P.

In an appeal from conviction, the appellate Court may amongst other things reverse the finding and sentence and acquit or discharge the accused or order him to be retried. In the case in hand it may, however, be noticed at the outset that the appellate Court below has not directed retrial of the applicants but merely asked the trial Magistrate to pass a fresh decision in the case. I am afraid the course adopted by the learned Judge was not in conformity with law. A remand for merely rewriting a judgment is not envisaged under sub-cl. (i) of cl. (b) of s. 386. Under this provision what could be ordered by the appellate Court was retrial not a fresh decision simpliciter. Even assuming that the direction given under the judgment impugned was retrial, the same in my view was also not warranted under the facts and circumstances of the case. It is well settled that retrial should not be made as a matter of course. Normally a re-trial would be proper where the trial in the lower Court has been illegal, irregular or otherwise defective (see Ukha Kolhe vs. State of Maharashtra AIR 1963 SC 1531). What the appellate Court has found in the instant case is that on the facts and in the circumstances of the case the charges under ss. 276C, 277 and 278B of the IT Act could not have been framed against the petitioners as these sections were not in existence when the act/omission complained of was committed by the accused-petitioners. If that was so, t appellate Court below was competent to straightaway record a finding of acquittal. There was absolutely no reason whatsoever to order retrial on that count.

It is pertinent to note here that the trial against the petitioners has been pending since 1986 and the judgment by the trial Court was passed as late as on 22nd Dec., 1995. Having regard to the passage of time and the observations made by the appellate Court below regarding the illegality of the prosecution itself, I am clearly of the view that it was not expedient to order retrial. The appellate Court below was all competent and should have exercised its jurisdiction in coming to its own conclusion as to the guilt or otherwise of the accused persons.

It was strenuously contended by learned counsel for the petitioners that in view of the findings recorded by the Court below regarding incompetence of the prosecution, this Court should not only set aside the order of remand but also quash the prosecution and acquit the petitioners. I am not persuaded by the arguments. What is impugned before this Court is the order of remand which is obviously not sustainable in law. That being so, the appeal stands revived and it is for the appellate Court below to pass appropriate judgment in the case in conformity with law.

In the result I allow this revision, set aside the judgment dt. 12th Nov., 1997, passed by the appellate Court below and direct that the Court below shall re-admit the appeal and after hearing both the parties, decide the same in accordance with law. Should it cause further delay in the matter, the parties are directed to remain present before the Sixth Additional Sessions Judge, Indore, on 23rd March, 1998, and no further notice for hearing of the appeal shall now be required.

[Citation: 236 ITR 586]