ASHOK KUMAR Vs. STATE

JUDGEMENT

(1.) THIS criminal revision. is directed against judgment dated August 4, 1980, of Shri S.R. Goel, Additional Sessions Judge, Delhi, by which he had decided the appeal brought against order dated September 7,1979, of a Metropolitan Magistrate holding the petitioner guilty of offence punishable under, Section 379 of the Indian Penal Code and subsequent order dated October 24, 1989, releasing him on probation on his furnishing a bond in the sum of Rs. 3,000/- for keeping peace and be of good behaviour for a period of three years.

(2.) THE Additional Sessions Judge while maintaining the conviction of the petitioner has set aside the order of the Magistrate by which he had granted the benefit of probation to the petitioner and had remanded the case back to the Metropolitan Magistrate to decide the question of imposing proper sentence on the petitioner as the Additional Sessions Judge was of the view that the petitioner appeared to be a previous convict and did not deserve benefit of probation. As far as the judgment of the Additional Sessions Judge upholding the conviction of the petitioner is concerned, the same is well based. There appears to be no illegality committed by the Additional Sessions Judge in appreciating the evidence which clearly pointed out that the petitioner was guilty of offence punishable under Section 379 of the Indian Penal Code. It is not proper for this court to reappraise the evidence and come to a different conclusion. The short question which has been argued before me is whether the Additional Sessions Judge was right in setting aside the order of the Metropolitan' Magistrate regarding the grant of probationary benefits to the petitioner and remanding the case back to the Metropolitan Magistrate for imposing proper sentence.

(3.) A bare perusal of the Section shows that there is no power given to. the Appellate Court for remanding the case for imposing proper sentence. The Appellate Court has power to remand the case for purposes of retrial meaning thereby that if the court is to come to the conclusion that a proper trial has not taken place or some grave illegality has been committed in the trial, the court has ample power to direct retrial of a particular accused but there is no power conferred on the Appellate Court to remand the case only for purposes of imposing proper sentence. The matter is not res-integra as far as this Court is concerned because it has been held in the case of Pratul Chaudhari and others v. The State, 1979 Cri. LJ 103, by a Single Judge of this Court that there is no power vested in the Appellate Court to order remand of the case under the Code of Criminal Procedure for imposing proper sentence. There was no appeal or revision filed by the state seeking enhancement of the sentence of the petitioner. Hence, the Additional Sessions judge was not right in directing the remand of the case only for purposes of imposing proper sentence on the petitioner.