JUDGMENT
S.C. Mohapatra, J.
1. Scope and applicability of Sections 386 and 391, Cr. P. C. are to be examined in this revision filed by the complainant.
2. Learned Additional Sessions Judge allowed the criminal revision filed by accused persons against their conviction and sentences in which while setting aside the order of conviction and sentences, learned Additional Sessions Judge remitted the case back to the trial Court for giving opportunity to the accused persons to summon the Revenue Supervisor in order to prove the original of the certified copy of his report and to produce such documents subject to proper proof of the same. It was further stated that learned Magistrate shall not deprive the complainant in cross-examining the Revenue Supervisor or any other witness examined to prove the report and will dispose of the case after hearing the parties in accordance with law utilising existing materials on record.
3. Section 386 and Section 391 vest powers in an appellate Court. Under Section 401(1), Cr. P. C. High Court, in its discretion may exercise those powers while exercising power of revision. Under Section 399(1) Cr. P. C. Sessions Judge may exercise all or any of the powers which may be exercised by the High Court Under Section 401(1). Section 400 provides that an Additional Sessions Judge can exercise all the powers of a Sessions Judge in any case which is transferred to him. Thus, there is no difficult in coming to the conclusion that Additional Sessions Judge in disposing of a criminal revision by accused against his conviction and sentences can exercise his power Under Sections 386 and 391, Cr. P. C.
4. These sections read as follows :
“386. Powers of the appellate Court.
After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if the appears, and in case of an appeal Under Section 377 or Section 378, the accused if he appears, the appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may
(a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law :
(b) in appeal from a conviction :
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial; or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding alter the nature or the extent, or the nature and extent, of the sentence but not so as to enhance the same;
(c) in an appeal for enhancement of sentence :
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent or the nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse, such order;
(e) make any amendment or any consequential or incidental order that may be just or proper :
Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement :
Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, then might have been inflicted for that offence by the Court pissing the ordar or sentence under appeal”
“391. Appellate Court may take further evidence or direct it to be taken.
(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court and such Court shall thereupon proceed to dispose of the appeal
(3) The accused or his pleader shall have the right to be present when the additional evidence is taken.
(4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry”.
Perusal of Section 385(b)(i) makes it clear that appellate Court can order an accused to be re-tried by a Court of competent jurisdiction subordinate to the appellate Court. Sec 391 provides that aspellate Court by recording reasons may either take additional evidence itself or direct it to be taken by a Magistrate and the Magistrate after taking additional evidence shall certify such evidence to the appellate Court who shall proceed to dispose of the appeal. As has already been stated, this power can be exercised by a Court of revision.
5. In this case, some documents were filed by the accused persons and they intended to examine the Revenue Supervisor. After the same was rejected, they examined other witnesses in defence. In the revisional Court, some more documents were filed. It was stated in the petition for accepting additional evidence that in the trial Court prayer was made to call for the connected case record hut learned Magistrate rejected the same. Certified copy of the letter No. 2388 dated 16-6-1984 was in possess-on of the accused much before the closure of the trial Copy of the order of the Revenue Officer in O. L. R. Case No. 28 of 1982, was however, passed and obtained much later. On the grounds that a document was not available and in respect of other document records were not called for and Revenue Supervisor was not examined learned Additional Sessions Judge entertained them as additional evidence.
6. Learned Addl. Sessions Judge was of the view that Revenue Supervisor was to be examined. Under Section 391, Cr. P. C. he could have examined the Revenue Supervisor himself or could have directed his evidence to be taken by the learned Magistrate to certify the same to the revisional Court. 1 find no justification for the learned Additional Sessions Judge to set aside the judgment and remit the matter back to the learned Magistrate.
7. Mr. S. K. Mohannty, learned counsel for complainant-petitioner submitted that setting aside the judgment amounts to re-trial of the petitioner and accordingly, evidence is required to be taken afresh and there is no scope for the evidence . on. record to be treated as evidence. He relied. upon a decision reported in 1975 Cr. L. J. 862(Jamuna Singh and Ors. v. State of Bihar), of Patna High Court It was held by Patna High Court that setting aside the conviction and sentence and remanding the case was not appropriate because -once a re-trial is ordered by the appellate Court, evidence already on record is deemed not to be in the record. Accordingly, in exceptional cases only, such power is to be exercised. For coming to the conclusion, Patna High Court relied upon a decision reported in AIR 1963 SC 1531 ( Ukha Kothe v. The State of Maharashtra).
8. In this case, complainant did not intend to adduce any further evidence. When the learned Addl. Sessions Judge found that accused persons have not been given reasonable opportunity to adduce evidence in defence, exercise of the power Under Section 391 would have been adequate. There was no justification for exercise of the power Under Section 386, Cr. P. C. Accordingly, order of learned Sessions Judge cannot be sustained. It is, however, made clear that learned Additional Sessions Judge may take the evidence himself or direct the Magistrate to take the evidence whereafter learned Magistrate may certify the evidence to the Court of learned Addl. Sessions Judge for disposal of the revision.
9. In the result, criminal revision Is allowed and learned Addl. Sessions Judge is directed to dispose of the revision in accordance with law.