SALLAUDIN SARKAR Vs. STATE

JUDGEMENT

(1.) Heard. The accused/applicant was convicted under Sections 304-A, 279 and 338, IPC. The appeal was allowed by the learned Additional Sessions Judge expressing doubts on the identity of the driver responsible for the accident and remanded the matter on 10th July, 1996 with the following observations.

(2.) The learned Counsel for the petitioner assails this order and the subsequent proceedings on the ground that.under Section 386 the Appellate Court could either reverse the findings and sentence and acquit or discharge the accused or order him to be tried by a Court of competent jurisdiction subordinate to such Appellate Court. It is apparent that the case has not been remanded for retrial. It has been remanded to record additional evidence. As such the order could not be justified under Section 386. It is submitted by the learned Counsel that under Section 391 of Cr.P.C. also the order could not be justified. If the Appellate Court wanted to take further evidence it could either take such evidence itself or direct it to be taken by a Magistrate. In case evidence is sought to be recorded by the M.M. then appeal ought to be kept pending. He submits that thus neither provisions of Section 386 nor Section 391 have been complied with. Consequently, order dated 10.7.1997 could not be justified.

(3.) Even after recording evidence by the Metropolitan Magistrate no material evidence relating to identification of the driver of the vehicle which caused accident was brought on record. But the learned M.M. convicted the accused. Unfortunately, the Additional Sessions Judge on hearing appeal against the second conviction upheld the conviction but reduced the sentence to one year.