PODIYAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The revision petitioner was convicted by the learned Magistrate for offences punishable under Secs. 40(2) and 57 r/w 51 of Wildlife (Protection) Act (hereinafter referred to as "Act"). But the learned Magistrate released the petitioner on probation for one year under Sec. 4 of Probation of Offenders Act on his executing a bond for Rs. 5,000/-. Besides, the petitioner and other accused were directed to pay Rs. 3,000/- each as compensation to the aggrieved. That conviction and sentence passed against the petitioner herein was challenged before the appellate court. The learned Additional Sessions Judge concurred with the conviction, but noticed that the trial court did not award the proper sentence as mandated under the relevant provisions of the Wildlife (Protection) Act and so the case was remitted back to the trial court for fresh consideration of the sentence to be awarded against the petitioner. That order of remand passed by the appellate court is challenged by the accused in this revision. The learned counsel for the revision petitioner submits that in the appeal filed by the accused challenging the conviction, appellate court is not entitled to enhance the sentence and if that be so, the appellate court cannot, after confirming the conviction, remand the case to the trial court for awarding proper sentence which in the context of this case is to enhance the sentence.

(2.) Sri. P.S. Appu, the learned counsel appearing for the petitioner has relied upon the decision of Andhra Pradesh High Court in Maruthi College of Engineering and Technology, Hyderabad (M/s.) and Another v. State of Andhra Pradesh and Another,2011 KHC 6059 in support of his submission that there is no power for the criminal appellate court to remand a case like a civil appellate court and that the option open to the appellate court is to order re-trial of the case.

(3.) Sri. M.P. Madhavankutty, Special Prosecutor for Forest has relied upon the decision of the Division Bench of this court in Ishaque v. Raveendran Thampan, 2010 2 KerLT 1 to fortify his submission that it is permissible for the appellate court to remand a matter after upholding the conviction and setting aside the existing sentence for imposing an appropriate or just sentence. The decisions in Santa Singh v. State of Punjab, 1976 AIR(SC) 2386 and Narpal Singh v. State of Haryana, 1977 AIR(SC) 1066 of the Supreme Court were relied upon by the Division Bench and held that the appellate court can after upholding the finding of guilt remand the matter to the trial court solely for the purpose of imposing an appropriate sentence.