DEEPAK MAHESHWARI,J. - (1.) By way of this revision, the petitioner has approached this Court being aggrieved of the judgment dated 21.1.2017 passed by the learned Additional Sessions Judge No. 12, Jaipur Metropolitan in Criminal Appeal No. 03/2017 whereby the appellate court, while deciding the petitioner's appeal against conviction, set aside the judgment dated 09.12.2016 passed by learned Additional Civil Judge and Metropolitan Magistrate No. 10, Jaipur Metropolitan in Criminal Case No. 882/2003 (321/98), convicting and sentencing the petitioner for the offence under Section 19/54 of the Rajasthan Excise Act and while remanding the matter, directed the trial Court to summon and examine a few more witnesses and then to decide the case afresh.
(2.) Learned counsel for the petitioner, relying on the provisions of Section 386 (b) (I) Cr.P.C. urged that the appellate Court does not have jurisdiction to make partial remand of a case while considering an appeal arising from a judgment of conviction. He submits that if at all the appellate Court was of the view that the trial was vitiated on account of some irregularity or otherwise, it could have set aside the judgment passed by the trial Court in totality and could have directed a re-trial but as per him, a direction to examine a few witnesses and then to pass a fresh order after hearing the parties, could not have been given by the appellate Court in view of the clear language of Section 386 (b) (I) Cr.P.C. He thus, submits that the judgment under challenge deserves to be quashed and set aside. However, at the same time, he candidly concedes that the appellate Court could have exercised the powers under Section 391 Cr.P.C. to examine more witnesses at the appellate stage if it was felt necessary to exercise that power.
(3.) Learned counsel for the petitioner submits that the matter is squarely covered by the judgment rendered by coordinate Bench of this Court in Ram Swaroop v. State of Rajasthan, reported in 2008 (2) RCC p. 676.;