NAGAMALLA SUDHAKAR Vs. STATE POLICE RAMADUGU KARIMNAGAR

JUDGEMENT

(1.) Aggrieved by the order of the Sessions Judge, Karimnagar in Criminal Appeal No.68/92 wherein the learned Sessions Judge set aside the conviction and sentence for the offence under Sections 420 and 406 IPC given by the Principal Judicial First Class Magistrate, Karimnagar in C.C.No.226/92, remanded the matter to the Trial Court for fresh disposal with a direction that the prosecution should be given an opportunity to examine some more witnesses.

(2.) The learned Counsel appearing for the appellant strenuously contended that the impugned order of the Sessions Judge permitted the prosecution to rectify the infirmities that have come on record in the trial by denying the benefit of acquittal and the same is opposed to criminal jurisprudence. In support of his contention he placed reliance on the observations made by the Supreme Court in "Ukha Kolhe v. The State of Maharastra" (1) AIR 1963 SC 1531. In the said case a Constitution Bench of the Supreme Court considered the power of the Appellate Court while disposing of the appeal and in what circumstances the Appellate Court can order retrial in the case under Section 423 of Old Cr.P.C. It is useful to extract here Para 11 of the said judgment which deals with this aspect:

(3.) Section 383 of the new Criminal Procedure Code 1973 deals with the powers of the appellate Court and sub-section (b) deals with the appeal from a conviction, as follows: