Sri Krishna Prasad Sinha vs Emperor

Rowland, J.—The petitioner was convicted of chealing by a Deputy Magistrate with first class powers and was sentenced u/s 420, Indian Penal Code, to imprisonment for four months and a fine of Rs. 300 On appeal to the Sessions Judge it was found that some documents which had been marked as exhibits had not in the opinion of the Sessions Judge been proved according to law although they had been admitted in evidence without objection The Sessions Judge thought that two documents (Exs. 10 and 11) ought to be proved and he also thought that the examination of the accused u/s 342 had not been satisfactory and that the accused should be examined afresh. This being so there were two courses open to the learned Sessions Judge : one was to proceed u/s 428, that is to say, to keep the appeal pending on his own file while directing additional evidence to be taken by a Magistrate and duly certified to the Appellate Court which would then dispose of the appeal u/s 428, Clause (2). In ordering additional evidence to be taken it would be quite proper to direct a further examination of the accused at the same time. The other course was u/s 423 to set aside the conviction and order the accused to be re-tried by a Court of competent jurisdiction. Such a re-trial, if ordered, would be a de novo trial. The learned Sessions Judge has, however, done neither of these things but has passed an order setting aside the conviction and sending the cape back for further evidence but not for complete retrial. The illegality of such a proceeding has been pointed out in Gajanand Thakur v. Emperor 1 Pat. LJ 99 : AIR 1916 Pat. 219 : 35 Ind. Cas. 508 : 17 Cri.LJ 332, a decision followed in subsequent cases of this Court. I must, therefor, set aside the order passed by the learned Sessions Judge and direct that the appeal be restored to the file of his Court and disposed of by him in accordance with law. If he requires further evidence to enable him to dispose of the original appeal he should proceed in one or other of the two methods which the Code authorizes.