KUSUMCHAND SHARADCHAND Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS revision under Section 397/401, of the Criminal Procedure Code, is directed against the judgment dated November 12, 1997, passed by the Sixth Addl. Sessions Judge, Indore, in Cr. Appeal No. 406 of 1996 setting aside the conviction and sentence recorded by the A. C. J. M. Indore, in Criminal Case No. 21 of 1986 and remanding the case back to the trial magistrate for decision afresh.

(2.) THE petitioners were convicted by the trial magistrate on the charges under Sections 276C, 277 and 278B of the Income-tax Act, 1961, and sentenced to various sentences. THE appellate court below us, however, found that all the aforesaid sections have been inserted in the Act of 1961 by Amendment Act of 1975, with effect from October 1, 1975, and since the offences alleged against the petitioners were prior to October 1, 1975, their conviction for the said offences was contrary to law. With this finding, the appellate court below has remanded the case back to the trial magistrate for decision afresh.

(3.) EVEN assuming that the direction given under the judgment impugned was re-trial, the same in my view was also not warranted under the facts and circumstances of the case. It is well settled that re-trial should not be made as a matter of course. Normally a re-trial would be proper where the trial in the lower court has been illegal, irregular or otherwise defective (see Ukha Kolhe v. State of Maharashtra, AIR 1963 SC 1531). What the appellate court has found in the instant case is that on the facts and in the circumstances of the case the charges under Sections 276C, 277 and 278B of the Income-tax Act could not have been framed against the petitioners as these sections were not in existence when the act/omission complained of was committed by the accused-petitioners. If that was so, the appellate court below was competent to straightaway record a finding of acquittal. There was absolutely no reason whatsoever to order re-trial on that count.