S.S.DEWAN, J. - (1.) AMRIK Singh, Jagdev Singh petitioners alongwith the other two accused, namely, Basant Singh and Balwant Singh were brought to trial before the Judicial Magistrate 1st Class, Kharar, on the charges under sections 326 and 326/34 Indian Penal Code. Amrik Singh was convicted under section 326, Indian Penal Code and he was directed to be released under the Probation of Offenders Act, 1958, to keep the peace and be of good behaviour for a period of one year, whilst the other three accused were convicted under sections 326/34, Indian Penal Code and each of them was sentenced to 2 years rigorous imprisonment and a fine of Rs. 2000/ -. On appeal, the learned Additional Sessions Judge, Rup Nagar, acquitted Basant Singh, Balwant Singh and Jagdev Singh of the charge, but while doing so, he observed that in his view, a case under section 352, Indian Penal Code, was made out against Jagdev Singh petitioner and accordingly directed the trial Court to frame a charge under section 352, Indian Penal Code, against him and try him for this offence. The learned Additional Sessions Judge also ordered that an appropriate sentence should be passed against Amrik Singh for the offence under section 326, Indian Penal Code as he could not be released on probation, for that offence being punishable with imprisonment for life and on this reasoning, remitted the case to the trial Court to comply with the above directions. Feeling aggrieved, Amrik Singh and Jagdev Singh have come up in revision.
(2.) IT has been urged on behalf of the petitioners that the Additional Sessions Judge had no jurisdiction to give any such directions to the Magistrate meaning thereby that all what the Additional Sessions Judge could do was either to allow the appeal or dismiss the appeal but he could not direct the Magistrate to proceed against Jagdev Singh afresh according to the directions made by him in the body of the judgment which means that he could not remand, the case for fresh trial. The point raised on behalf of Jagdev Singh petitioner is not res integra. In case Jatha Nand v. The State of Haryana1, it has been observed as under: That it goes without saying that the appeal before the learned Additional Sessions Judge was an appeal from conviction and not an appeal from an order of acquittal. An appeal from an order of acquittal even does not lie before him. Thus he was confined to his powers as conferred by the Code in part (b) of section 386 of the Code of Criminal Procedure. Apparently, he has reversed the finding and sentence under section 419, Indian Penal Code, and acquitted the accused. He has not ordered a retrial or committal for trial of the accused for that offence. He has even not maintained or reduced the sentence or its nature and extent there under with or without altering the finding. He has just altered the finding on those facts on which the accused -petitioner had been discharged and has ordered a fresh framing of charge under section 467, Indian Penal Code. Now could this be done under section 386 of the Code of Criminal Procedure in this situation is the most point. The learned Additional Sessions Judge had no power to order a fresh trial of the accused on framing of a charge whilst hearing an appeal against an order of conviction of another offence." I am in respectful agreement with this annunciation. It is a correct exposition of the law on the point. In the light of the above principle. I allow the revision petition filed by Jagdev Singh and the impugned order passed by the Additional Sessions Judge so far as it relates to the ordering of the fresh trial of Jagdev Singh petitioner for the offence under section 352, Indian Penal Code, is hereby set aside.
(3.) THE learned Additional Sessions Judge while disposing or the appeal, confirmed the conviction of Amrik Singh under section 326, Indian Penal Code and set aside the order of probation but remanded the case to the trial Magistrate observing that he should pass the appropriate sentence after hearing the petitioner Amrik Singh and the State. There could be no remand of a case for the purpose of passing a proper sentence. Under section 386 (b) of the Code, the Appellate Court has the power to reverse the finding and sentence and either acquit or discharge the accused or order him to be retired by a Court of competent jurisdiction. The procedure followed by the learned Additional Sessions Judge is not correct and hence the order passed by him qua Amrik Singh is also set aside. He shall restore the appeal of Amrik Singh to his file and dispose of the matter according to law. The revision petition stands disposed of accordingly. Order accordingly. 1. 1992(2) C.L R. 652;