SUBRAMANI Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) This Criminal Revision Case is directed against the judg-ment of the learned I Additional Sessions Judge, Krishnagiri, dated 19,09.2006 made in Cr.A.No.5/2004 remanding CC.No.187/ 2002 to the 11 le of the trial court, namely the court of the Judicial Magistrate, Pochampalli after setting aside the convic-tion recorded and the sentence imposed by the trial court for offences punishable un-der Sections 15(2)(b) and 3 of Indian Medi-cal Council Act and Section 354 of IPC.

(2.) The accused, who.was charged with committing the said offences before the trial court faced trial and at the end of the trial, he was found guilty and convicted of the said offences by the trial court on 23.11.2004. As against conviction and sentence, the peti-tioner herein (accused) preferred an appeal in Cr.A.No.5/2004 before the I Additional Sessions Judge, Krishnagiri. The learned I Additional Sessions Judge, Krishnagiri, af-ter hearing, held that the conviction re-corded by the trial court could not be sus-tained in view of the fact that the Investi-gating Officer was not examined and the valuable right of eliciting certain facts from the Investigating Officer was denied to the petitioner herein/accused. However, holding that the non-examination of the Investigat-ing Officer should not automatically result in giving a clean chit to the accused and that in order to avoid miscarriage of justice, the case was remanded back to the trial court with a direction to give opportunity to ex-amine the Investigating Officer and then decide the case on merit. The said judgment and order of remand of the lower appellate court made in Cr.A.No.5/2004 dated 19.09.2006 is impugned in this Criminal Revision Case.

(3.) Mr. S.M. Subramaniam, learned coun-sel for the petitioner would contend that the lower appellate court, after coming to the conclusion that the conviction based on the available evidence adduced before the trial court could not be sustained, ought to have acquitted the petitioner/accused and ought not to have remanded the case for filling up the lacuna caused in the prosecution case by directing the trial court to give an oppor-tunity to examine the Investigating Officer. It is the further contention of the learned counsel for the petitioner that the court should not have acted as a prosecuting agency and for that reason also, the order of remand remitting the case back to the trial court for fresh disposal shall.stand vi-tiated.