U.L. Bhat, J.
1. The revision petitioner was originally convicted by the trial Court for offence under Sections 304A and 279, I.P.C. and sentenced to pay a fine of Rs. 500/- and in default to undergo simple imprisonment for three months under the former count. No separate sentence was imposed under the latter count. The Sessions Judge in Crl. Appeal No. 72 of 1983 set aside the conviction and sentence and remanded the case for completion of the trial after summoning charge witnesses who were not examined and for disposal according to law. Thereafter the remaining charge witnesses were summoned and two of them who were available were examined as P.Ws. 10 and 11. The trial Court convicted the revision petitioner under Sections 304A and 279, I.P.C. and sentenced him to undergo rigorous imprisonment for six months and to pay fine of Rs. 1000/- and in default to undergo rigorous imprisonment for three months more under the former count. No separate sentence was imposed under the latter count. Criminal Appeal No. 91 of 1986 challenging the conviction and sentence was dismissed. Thereupon the accused filed the present revision petition.
2. The learned single Judge who heard the revision petition referred it to a Division Bench. It was argued before the learned single Judge that the earlier remand of the case was illegal in the light of the decisions of this Court in Kesavan Nair v. State of Kerala, 1979 Ker LT 635 and Govindan v. Food Inspector, 1982 Ker LT 27 : (1982 Cri LJ 784). We have heard learned Counsel for the revision petitioner and the learned Additional Public Prosecutor.
3. Some of the material facts in the case are either undisputed or satisfactorily proved. On 24-5-1981 at about 5.00p.m. deceased Ravikumaran Nair, an employee of the Kerala State Electricity Board, was driving a car, K.R.V. 5037 belonging to the Board along the Alleppey-Ernakulam National Highway from south to north. When it reached near Kunnathu Financial Corporation building at Kurukkanchantha, lorry, T.D.S. 1069, driven by the revision petitioner came from north to south. The lorry crashed into the front right side of the car and Ravikumaran Nair sustained fatal injuries. He was taken in another car to Government Hospital, Shertallai and thereafter to Medical College Hospital, Alleppey. He was dead by 6.30p.m. P.W.1, Chief Engineer of the Electricity Board was a passenger in the car. P.W. 4 went to Kuthiathodu Police Station and gave Ext. P2 information on the basis of which case was registered against the driver of the lorry. P.W. 8, C.I. of Police, investigated the case. P.W. 9, S.I. of Police, held inquest over the body and prepared Ext. P7 inquest report. Post-mortem was conducted by P.W. 6. P.W. 5, Motor Vehicle Inspector, inspected both the vehicles and submitted Exts. P3 and P4 reports. On the same day P.W. 9 reported that the driver of the lorry was the revision petitioner and report was accordingly submitted to Court. On the same day revision petitioner was arrested and released on bond. Lorry was also released to the owner. After completing investigation charge was laid.
4. Though a large number of witnesses were cited by the prosecution, originally only P.Ws. 1 to 9 were examined and relying on their evidence revision petitioner was convicted. After remand though steps were taken to summon the remaining charge witnesses, only two were available and they were examined as P.Ws. 10 and 11. P.W. 10 is the Village Officer who prepared plan of the scene of occurrence and since the plan was not found among the records he was given up. P.W. 11 is the police constable who was in charge of the dead body.
5. On the facts learned Counsel for the revision petitioner contended that the evidence regarding post-mortem conducted by P.W. 6 would show that it was conducted not on the body of Ravikumaran Nair, driver of the car, but on the body of Ramakrishnan Nair, that prosecution failed to prove that rashness or negligence on the part of the revision petitioner was responsible for the accident and that the evidence is uncertain regarding the exact scene of occurrence.
6. Ext. P5 is the post-mortem certificate issued by P.W. 6. It mentions that postmortem was conducted of a male body named Ramakrishnan Nair. The name of the deceased is Ravikumaran Nair. However, Exhibit P5 itself indicates that the body was of the person involved in Crime No. 100/81 of Kuthiathodu Police Station, which is the crime case leading to this case. The certificate also shows that the body was identified and handed over by P.C. 2692 of Kuthiathodu Police Station. Inquest report refers to the body as that of Ravikumaran Nair and it shows that the body had been handed over to P.C. 2692 of Kuthiathodu Police Station. The evidence of P.W. 9 shows that he held inquest over the body of Ravikumaran Nair in the Alleppey Hospital and prepared Ext. P7 inquest report. P.W. 11 is P.C. 2692 of Kuthiathodu Police Station. He deposed that he handed over the body of Ravikumaran Nair to the Doctor for post-mortem and after post-mortem he was responsible for handing over the body to the relatives. In these circumstances the finding of the appellate Judge that post-mortem was conducted of the body of Ravikumaran Nair involved in the case and mention of Ramakrishnan Nair by the Doctor was a mistake appears to be correct.
7. We have been taken through the averments in the scene Mahazar and the oral evidence in the case. We find no material or irreconcilable discrepancy regarding the location in the scene mahazar. P.Ws. 1, 4 and 7 were examined as eye-witnesses. Of them P.W. 7 turned hostile. P.W. 1, Chief Engineer of the Board, was a passenger in the car. He clearly deposed that the lorry came at an excessively high speed and just before the occurrence it suddenly swerved to west, that is on the correct side of the car and wrong side of the lorry, and crashed into the car. P. W. 4 was taking tea in a nearby shop. He saw the lorry coming and crashing into the car. He rushed to the scene and gave soda water to the driver of the car. He also joined in taking the injured first to Government Hospital, Shertallai and then to Medical College Hospital, Alleppey. It was he who gave first information to the police. He identified the revision petitioner as the driver of the lorry and said that the lorry came at speed, that is high speed. The other circumstances of the case would indicate that the impact took place on the western side of the road, which was the wrong side for the lorry and correct side for the car. Width of the tarred portion of the scene is 7.59 metres and the road lies straight. Place of incident was at a point 2.73 metres from the western extremity of the tarred road and the distance from the eastern end of the tarred road was 4.86 metres. It is clear that the impact took place when the car was on the western side of the road, which as we have already mentioned was the correct side for the car and the wrong side for the lorry. In these circumstances the two Courts below were justified in holding that the lorry came at an excessive speed and suddenly swerved westwards and crashed into the car. Condition of brakes in the lorry was seen to be alright going by the evidence of P.W. 5. There was no mechanical defect in the lorry. On the dead body were seen abrasion and lacerated wound on the right forearm, abraded contusion on the right shoulder and left leg, contusion on the right forehead and right side of neck, rupture of liver (peritoneal cavity contained blood) and fracture of fourth, fifth and sixth ribs on the right side. Right side lung had collapsed. The nature of the injuries would clearly indicate that they could have been sustained in the course of such a collision. Therefore the findings of the Courts below that lorry driven by the revision petitioner crashed into the car driven by Ravikumaran Nair on account of rash driving of the lorry by the revision petitioner and as a result of the impact Ravikumaran Nair sustained fatal injuries are justified.
8. The main contention urged by the learned Counsel for the revision petitioner is that the earlier remand ordered by the Sessions Court in appeal against the first conviction was illegal and therefore the conviction, and sentence cannot stand. According to learned Counsel, a remand can be made only for the purpose of fresh or de novo trial and cannot be made for the purpose of continuance or completion of trial to enable the prosecution or the defence to adduce additional evidence and that if additional evidence was thought necessary, recourse could be had only to Section 391 of the Code of Criminal Procedure. In other words, the contention is that remand for continuance of trial or further trial is not contemplated by Section 386 of the Code of Criminal Procedure. This contention is rebutted by the learned Prosecutor.
9. Chapter XXIX of the Code of Criminal Procedure, 1973 deals with appeals. Section 386 deals with powers of the appellate Court. The appellate Court may of course dismiss the appeal if there is no sufficient ground for interfering. In an appeal from an order of acquittal, according to Clause (a), the appellate Court may 'reverse such order and direct that further inquiry be made, or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law'. In an appeal from conviction, under Clause (b), the appellate Court may --
'(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried 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 natue or the extent, or the nature and extent, of the sentence, but not so as to enhance the same.'
We may now compare these provisions with the provisions of the Code of Criminal Procedure, 1898. Chapter XXXI of the 1898 Code dealt with appeals. Section 423 of that Code dealt with powers of appellate Court in disposing of the appeals. We find that Clause (a) of Section 423 is identical with Section 386(a) of the 1973 Code and Clause (b) of Section 423 of the 1898 Code is identical with Clause (b) of Section 386 of the 1973 Code except that in the latter there has been a rearrangement.
10. Section 391 of the 1973 Code deals with the power of the appellate Court to take further evidence or direct it to be taken. Sub-section (1) states that:
'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.'
Sub-section (2) states that:
'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.'
We find that the provisions in Section 428 of the 1898 Code are identical to the above provisions.
11. Learned Counsel for the revision petitioner placed reliance on the decisions of the Supreme Court in Chinnaswamy v. State of A. P., AIR 1962 SC 1788 : (1963 (1) Cri LJ 8); Abinash Chandra Bose v. Bimal Krishna Sen, AIR 1963 SC 316 : (1963 (1) Cri LJ 261); Ukha Kolhe v. State of Maharashtra, AIR 1963 SC 1531 : (1963 (2) Cri LJ 418) and the decisions of learned single Judges of this Court in Govindan v. Food Inspector, 1982 Ker LT 27: (1982 Cri LJ 784); Rajendran Nair v. State of Kerala, 1978 Ker LT 625 and Kesavan Nair v. State of Kerala, 1979 Ker LT 635. Reference is also made to the decisions of the Supreme Court in Rajeswar Prasad Misra v. State of West Bengal, AIR 1965 SC 1887 : (1965 (2) Cri LJ 817) and Matukdhari Singh v. Janardan, AIR 1966 SC 356 : (1966 Cri LJ 307), in regard to the power of appellate Court in the matter of remand.
12. In Chinnaswamy's case, AIR 1962 SC 1788 : (1963 (1) Cri LJ 8), the accused had been convicted by the trial Court. Sessions Court took the view that an important piece of evidence held against the accused was inadmissible and acquitted him. The High Court in revision by the de facto complainant held that the evidence held to be inadmissible by the Sessions Court was admissible, set aside the acquittal and directed the accused to be retried on the same charges. The Supreme Court agreed with the High Court that the acquittal deserved to be set aside. Supreme Court considered what should be the consequential directions to be issued. If the acquittal is by the trial Court and the acquittal is interfered with in revision the case has to be sent back to the trial Court for retrial. If the acquittal is by the appellate Court in reversal of conviction by the trial Court, two courses are open before the revisional Court. The appellate Court could be directed to rehear the appeal after treating the evidence as admissible; or retrial could also be ordered. The course to be adopted depends on the facts and circumstances of each case. Where, as in that case, the earlier evidence is on record the proper course is to send back the appeal for rehearing to the appellate Court. The Court also held that acquittal could be set aside in revision at the instance of a private party only in exceptional cases and proceeded to mention a few instances of such kind. The Court did not consider whether a limited retrial is or is not permissible.
13. In Abinash Chandra Bose's case, AIR 1963 SC 316 : (1963 (1) Cri LJ 261), accused had been acquitted and the High Court in appeal ordered retrial granting opportunity to the complainant to adduce evidence of the handwriting expert to speak to the genuineness of the disputed document. The Supreme Court observed that the power of ordering retrial under Section 423 is to be exercised only in exceptional cases. The accused should not be placed on trial for the same offence more than once except in very exceptional circumstances.
14. In Ukha Kolhe's case, AIR 1963 SC 1531 : (1963 (2) Cri LJ 418), accused was acquitted of the charge under the provisions of the M.V. Act and convicted under Section 66(b) of the Bombay Prohibition Act. In appeal the Sessions Court set aside the conviction and ordered retrial on the ground that there had not been fair and full trial. Revision before the High Court was dismissed. The Supreme Court set aside the order of the trial Court and directed the Sessions Judge to dispose of the appeal according to law giving an opportunity to the prosecution to lead evidence on matters indicated in the judgment. The Sessions Judge was directed to take additional evidence by himself or through the trial Court and the accused was directed to be examined under Section 342 of the Code of Criminal Procedure and to be given an opportunity to adduce evidence. In paragraph 11 of the majority judgment it was observed that:
'An order of retrial wipes out from the record the earlier proceeding, and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons.'
In paragraph 12 it was observed that:
'If additional evidence was thought necessary recourse can be had to Section 428(1) of the 1898 Code though it cannot be done to fill up the lacuna.'
From the judgment it can be seen that in the above case what the Sessions Court ordered was a complete retrial, that is, a fresh trial and that alone came up for consideration before the Supreme Court. There was no occasion in the above decision to consider whether retrial should necessarily be a fresh trial or de novo trial or could also be continuance of trial already conducted.
15. In Rajeswar Prasad Misra's case, AIR 1965 SC 1887 : (1965 (2) Cri LJ 817), the accused was acquitted by the trial Court. In appeal against acquittal High Court ordered production of documents and taking additional oral evidence to prove the documents evidently under Section 428 of the 1898 Code. After receiving the evidence the appeal was reheard and the accused convicted. The Supreme Court confirmed the judgment of the High Court, after referring to the earlier decisions of the Supreme Court referred to above. The Court cautioned against the tendency to read observations of the Court as statutory enactments. Dealing with the circumstances mentiond by the Supreme Court in the earlier decisions as exceptional and justifying order of retrial on receipt of additional evidence the Court observed that the enumeration made was not exhaustive and it is easy to contemplate other circumstances where retrial may be necessary. The Supreme Court also indicated that additional evidence may be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. In this decision also the Court had no occasion to consider the scope of retrial which could be ordered.
16. In Matukdhari Singh's case, AIR 1966 SC 356 : (1966 Cri LJ 307), accused was tried for offences under Sections 420, 466, 406 and 465/471, I.P.C. and acquitted. The trial Court did not frame charge under Section 467, I.P.C. regarding which there were prima facie materials available, that is an offence triable exclusively by Sessions Court. The High Court, in appeal, set aside the acquittal and ordered retrial. The Supreme Court dismissed the appeal preferred before it. The Court referred to earlier decisions in Abinash Chandra Bose's case (1963 (1) Cri LJ 261); Ukha Kolhe's case (1963 (2) Cri LJ 418) and Rajeshwar Prasad Misra's case (1965 (2) Cri LJ 817), with reference to the facts of those cases and emphasised the wide discretion available with the appellate Court in ordering retrial.
17. The earliest decision of this Court in which the same question arose for consideration was the one in Mariyam v. State of Kerala, 1961 Ker LT 33. In that case, conviction and sentence entered by the trial Court were set aside by the appellate Court which further directed retrial from the stage at which the defective procedure had been adopted by the trial Court, defective procedure being absence of personal questioning of the accused under Section 342 of the 1898 Code and accused not being given an opportunity to adduce evidence. Govinda Menon, J. took the view that the provision in Section 423(1)(b) of that Code enabling the appropriate Court to 'order him to be retried by a Court of competent jurisdiction.... 'is sufficiently wide to authorise retrial from the point at which the error or illegality in the trial has been committed. His Lordship sought support for this decision from the decisions in Motan Khan v. Emperor,AIR 1927 Sind 175 : (1927 (28) Cri LJ 417); Virumal Seoomal v. Emperor, AIR 1941 Sind 144 : (1941 (42) Cri LJ 837); Emperor v. Nathu Kasturchand Marwadi, ILR 50 Bom 42, equivalent to AIR 1925 Bom 170 : (1925 (26) Cri LJ 690); and Dibakanta Chatterjee v. Gour Gopal Mukherjee, ILR 50 Cal 939 : AIR 1923 Cal 727 : (1924 (25) Cri LJ 27). The learned Judge dissented from the contrary view taken by the Patna High Court in Ramchandra Prasad v. Emperor, AIR 1937 Pat 246 : (1937 (38) Cri LJ 657) and Gajanand Thakur v. Emperor, AIR 1916 Pat 219 : (1916 (17) Cri LJ 332. We find that a similar view had been taken by a Full Bench of the Punjab High Court in Dara Singh v. The State, AIR 1952 Punj 214: (1952 Cri LJ 998) and the Assam High Court in Nirmal Prasad Barua v. The State, AIR 1952 Assam 2 : (1952 Cri LJ 110) and a single Judge of the Patna High Court in Pannalal Kedia v. Nebi Singh, 1968 Cri LJ 1524. These decisions hold that retrial does not necessarily mean fresh trial and when retrial is ordered it does not mean there is to be a de novo trial from the very beginning and it depends on the facts and circumstances of the case as from what stage retrial could be ordered to be conducted. We also find that another learned single Judge of the Patna High Court in Jamuna Singh v. State of Bihar, 1975 Cri LJ 862, took a contrary view.
18. The next decision of this Court which may be considered is the one in Kunjan Sivan v. State of Kerala, 1969 Ker LT 602. The trial Court convicted the first accused under Section 325, I.P.C., second accused under Section 303, I.P.C. and third accused under Section 323, I.P.C., though all of them had been charged with offence under Section 302, I.P.C. read with Section 34, I.P.C. Second accused filed appeal before the High Court. High Court issued notice to accused 1 and 3 to show cause why their acquittal for the offence under Section 302, I.P.C. should not be set aside and retrial ordered. There was disagreement between the two learned Judges of the Division Bench who heard the case. Mathew, J. (as he then was) proposed to set aside the conviction entered against the third accused and instead convict the accused under Section 323 read with Section 34, I.P.C. Issac, J. proposed to set aside the conviction and also the acquittal under Section 302, I.P.C. read with Section 34, I.P.C. and to remand the case to the trial Court to consider the evidence afresh and dispose of the case according to law. Mathew, J. felt that the competency of the appellate Court to issue such a direction is not free from doubt on the ground that retrial contemplated is only a de novo trial. The case was referred to a third Judge, Raghavan, J. (as he then was). The learned Judge agreed with the view taken by Isaac, J. that Chinnaswamy's case, AIR 1962 SC 1788 : (1963 (1) Cri LJ 8), is an authority for the position that trial Court can be directed to rehear the case on the evidence already on record. There may be cases where the trial Court had wrongly referred to consider one piece of evidence which it had recorded and the appellate Court considers that the case should be reheard after taking that piece of evidence as well into consideration. It may be that the reasoning or the approach of the trial Court is so palpably erroneous that a rehearing is essential without any new evidence. However, on the merits the learned Judge agreed with the view taken by Mathew, J. and the case was disposed of accordingly.
19. In Kittunni Subramonian v. Kun-humon, 1973 Ker LT 371 : (1974 Cri LJ 548), Narayana Pillai, J. followed the earlier decision in Mariyam's case, 1961 Ker LT 33. It was a case where trial Court acquitted the accused charged for offences under Sections 447, 341 and 324, I.P.C. read with Section 34, I.P.C. The High Court in revision took the view that the trial Court had not discussed the evidence in regard to offence under Section 447, I.P.C. and set aside the acquittal and remanded the case to the trial Court for rehearing the case on the evidence already on record. The learned Judge in the course of the judgment adverted to Chinnaswamy's case, AIR 1962 SC 1788 : (1963 (1) Cri LJ 8); Mahendra Pratap Singh's case, AIR 1968 SC 707 : (1968 Cri LJ 865); Mariyam's case, 1961 Ker LT 33 and Kunnjan Sivan's case, 1969 Ker LT 602, and held that the expression 'retrial' used in Section 423(1)(a) of the Code includes limited retrial and retrial from the stage at which the error or illegality crept in and it can be restricted even to hearing.
20. In Rajendran Nair v. State of Kerala, 1978 Ker LT 625, the trial Court convicted the accused and the Sessions Court in appeal set aside the conviction and sentence and remanded the case for fresh disposal after giving an opportunity to the prosecution to adduce 'best' evidence. Poti, J. (as he then was) in revision held that such a remand is illegal and directed the Sessions Court to dispose of the appeal afresh. The learned Judge relied on the views expressed by Khalid, J. (as he then was) in Crl. R.P. No. 371 of 1975 and Kader, J. in Crl. R.P. No. 54 of 1977 (1979 Ker LT 635). The learned Judge compared the provisions in Sections 386(b) and 391 of the 1973 Code and held that where additional evidence is felt necessary, Section 391 should be invoked and the case disposed by the appellate Court after recording additional evidence by the appellate Court itself or getting the evidence to be taken by the Magistrate. However the learned Judge did not consider the provision in Section 386(b)(i) enabling the appellate Court to order retrial of the case or the scope of the expression 'retrial'.
21. In Kesavan Nair's case, 1979 Ker LT 635, there was conviction by the trial Court and in appeal Sessions Court set aside the conviction and remanded the case to the trial Court directing it to take additional evidence and dispose of the case afresh in accordance with law. Kader, J. set aside the judgment of the appellate Court and directed the appellate Court to rehear the appeal and dispose of the same in accordance with law. The judgment indicates that the Sessions Court made it clear that it was invoking power under Section 391 of the Code. Section 391 however does not contemplate remand of the case. It enables the appellate Court, if it thinks additional evidence necessary, to take evidence itself or direct it to be taken by Magistrate and thereafter to dispose of the appeal after considering the original evidence and the additional evidence. The learned Judge also indicated that Section 391 of the Code neither authorises the appellate Court to order fresh trial nor allows the trial Court to redecide the case on the additional evidence. We notice that the provisions of Section 386(b) of the Code were not invoked before the learned Judge, who therefore had no occasion to consider whether the order of retrial could be justified under that provision. In the order in Crl. R.P. 371/75 (relied on in Rajendran Nair's case, 1978 Ker LT 625, Khalid, J. (as he then was) did not consider if Section 396(b) could be invoked in such cases.
22. In Govindan's case, 1982 Ker LT 27 : (1982 Cri LJ 784) the trial Court convicted the accused under the provisions of the P.F.A. Act and in appeal before the Sessions Court prosecution filed an application under Section 311 of the Code seeking permission to adduce additional evidence in proof of compliance with Section 13(2) of the P.F.A. Act and that application was allowed. Thereafter the Magistrate took additional evidence under Section 391 of the Code and returned the evidence so recorded with the files and with the finding that Section 13(2) had been complied with. The Sessions Court dismissed the appeal accepting the finding. In revision the High Court indicated that while Section 391 enables the appellate Court to take additional evidence itself or direct it to be taken by a Magistrate, it does not enable the Magistrate to record a finding on the basis of the additional evidence so recorded and the appellate Court was not competent to treat any such finding as its own. The function of the Magistrate who is directed under Section 391 to record additional evidence is merely to record and certify such evidence to the appellate Court. Khalid, J. (as he then was) agreed with the view that what is contemplated in Section 391 of the Code is not a remand to the Magistrate for the purpose of fresh disposal after taking evidence. This decision is an authority only for the position that under Section 391 appellate Court cannot direct the trial Court to take additional evidence and dispose of the case and the trial Magistrate cannot after recording additional evidence give a finding. The learned Judge also referred to the observations in Kesavan Nair's case, 1979 Ker LT 635.
23. We notice that in the last three reported decisions as also in the unreported decision in Crl. R.P. 371 of 1975, the earlier decisions of this Court in Mariyam's case, 1961 Ker LT 33, Kunjan Sivan's case, 1969 Ker LT 602 and Kittunni Subramonian's case, 1973 Ker LT 371: (1974 Cri LJ 548) were not referred to. Nor did these decisions refer to the decision of the Supreme Court in Chinnaswamy's case, AIR 1962 SC 1788 : (1963 (1) Cri LJ 8), which clearly spelled out the competency of the appellate Court to remand the case for rehearing and redisposal.
24. Section 391 confers on the appellate Court a special and peculiar kind of power. Under this provision, in dealing with any appeal under Chap. XXIX (whether it be an appeal against acquittal or conviction) appellate Court if it thinks additional evidence necessary shall record its reasons and either take such evidence itself 'or direct it to be taken by a Magistrate. When the appellate Court is the High Court evidence can be taken by Court of Session or Magistrate. Thereupon the Magistrate shall take additional evidence and certify such evidence to the appellate Court and the appellate Court shall thereupon proceed to dispose of the appeal, hi issuing a direction under Section 391 to the Magistrate to record additional evidence, appellate Court does not set aside the judgment of the trial Court, does not dispose of the appeal and does not remand the case. Appeal shall be retained on the file of the appellate Court when additional evidence is called for and thereafter the original evidence and additional evidence is to be considered and the appeal disposed of. No further inquiry or retrial or rehearing by the trial Court is contemplated.
25. A specific provision like Section 391 of the Code is necessary since the direction con-templated thereunder is not within the power of the appellate Court under Section 386 of the Code. Section 386 deals separately with powers of the appellate Court in an appeal from acquittal, appeal from conviction, an appeal for enhancement of sentence or an appeal from any other order. In an appeal from acquittal the Court may reverse the acquittal and direct further inquiry be made, or that the accused be retried or committed for trial, as the case may be. or find him guilty and pass sentence on him according to law. In an appeal from conviction the Court may reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a Court of competent jurisdiction subordinate to such appellate Court or committed for trial. It has to be noticed the words 'further inquiry' found in Clause (a) are not found in Clause (b). In some of the decisions of other High Courts referred to earlier, an inference is drawn from the absence of words further inquiry' in Clause (b). We do not think that such an inference could be legitimately drawn, that is because 'inquiry' as defined in the Code is different from trial. Section 2(g) of the Code defines 'inquiry' as 'every inquiry other than a trial, conducted under the Code by a Magistrate or Court'. The expressions 'inquiry' and 'trial' have different connotations. The fact that Section 386(b) of the Code does not specifically empower the appellate Court to direct further inquiry to be made cannot lead to the inference that the appellate Court cannot order a limited retrial.
26. The power to direct the accused to be retried has been conferred oh the appellate Court not only when it deals with an appeal against acquittal but also when it deals with an appeal against conviction. In ordinary parlance retrial only connotes a person being tried once again. Such trial may be from its very inception or it may be from a particular stage. The expression 'retrial' should not be given a rigid connotation as 'de novo' trial. There is nothing either in the context or other provisions of Section 386 which indicates that such a narrow and rigid view of the expression 'retrial' has been intended by the legislature. As indicated by the Supreme Court in the decisions already referred to, a retrial is not ordered ordinarily. Prosecution had its day in the trial Court and if the evidence adduced by the prosecution is insufficient to bring home guilt of the accused, he would be entitled to acquittal. It is only in exceptional cases that the appellate Court requires the accused to face trial again. There may be cases where trial Court wrongfully refused to receive evidence sought to be adduced either by the prosecution or by the defence; it may be that the accused had not been questioned regarding the incriminating circumstances appearing against him or it may be that the trial Court committed material irregularity or serious illegality which caused serious prejudice to the accused or it may be that the trial is vitiated for other reasons or the trial Court had no jurisdiction to proceed with the trial in spite of objection. We do not think there is anything in Section 386 to indicate that in all these cases and irrespective of the circumstances of the case, accused should be subjected to de novo trial. Once the appellate Court comes to the conclusion that justice requires retrial it is for that Court to consider whether it should be a completely de novo trial or continuance or completion of the trial already commenced. Whether direction of the one or the other type should be issued depends on the facts and circumstances of each case, alleged irregularity or illegality committed by the trial Court or the exact reason which prompts the appellate Court to send back the case. Where the illegality or material irregularity committed by the trial Court has prejudiced the accused or even the prosecution, it will be against public policy to wipe the entire evidence off the record and direct the Magistrate to start again or the accused to face de novo trial from the very beginning. Public interest is not only not served thereby; public interest will be adversely affected thereby. There may be cases where even though the trial Court did not commit any material irregularity or illegality, appellate Court comes to the conclusion for proper reasons that either on account of collusion or otherwise evidence available was not placed before Court and that such evidence is necessary for a proper disposal of the case or in public interest. One way of ensuring it is to have recourse to Section 391 of the Code; but that may not always be convenient or practicable. In such cases recourse may be had to the provisions in Section 386 of the Code enabling retrial and retrial may be ordered from a particular stage. When additional evidence by way of examination of witnesses for prosecution is ordered under Section 391 of the Code that may necessitate further questioning by the Court of the accused under Section 313 of the Code and thereupon the accused may have to get an opportunity to adduce evidence. It may not always be practicable or convenient for the appellate court to go through this entire exercise. In appropriate cases it must be open to the appellate Court to order retrial from a particular stage. We find nothing in the decisions of the Supreme Court or in the provisions of the Code to warrant the view that retrial necessarily means de novo trial. Even where partial retrial is held that amounts to accused being tried again. Retrial could also mean continuation or completion of the original trial. We are of the opinion that such retrial can be ordered under Section 386 of the Code. We affirm the view taken in Mariyam's case. 1961 Ker LT 33. With great respect we are unable to agree with the view taken in Crl. R.P. 371 75 and Rajendran Nair's case, 1978 Ker LT 625. There is nothing in. Kesavan Nair's case, 1979 Ker LT 635 and Govindan's case, 1982 Ker LT 27 : (1982 Cri LJ 784) which goes against the view we have taken.
27. We therefore find nothing illegal in the remand order passed by the appellate Court in the first instance. The accused abided by the remand order. He participated in the retrial before the trial Court. He did not challenge the remand order in revision or otherwise. Similar conduct on the part of accused has been commented upon by Khalid, J. (as he then was) in Govindan's case, 1982 Ker LT 27 : (1982 Cri LJ 784 at p. 785), where the learned judge observed :
'It is necessary to note that the petitioner did not challenge the order of the Sessions Judge dated 14-11-1978 when he sent back the case to the Magistrate for the purpose of taking additional evidence and to return a finding. The petitioner's counsel attempts now to question the correctness and propriety of that order in this revision. It may not be permissible to allow him to do so. He could have challenged that order by moving this Court if a revision would lie against it or under Section 482, Cr. P.C. Not having done so an attack against that order at this stage will not be entertained.'
28. We find no ground to interfere with the conviction or sentence imposed on the revision petitioner and accordingly dismiss the revision petition.