IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 Crl.Rev.Pet.No. 2246 of 2008() ------------------------------ CRA.531/2008 of SESSIONS COURT, KOZHIKOE CC.241/2003 of JUDL. MAGISTRATE OF FIRST CLASS-V, KOZHIKODE .................... REVN. PETITIONER: APPELLANT/ACCUSED ----------------------------------------------- ABDUL SALAM, S/O.ASSAINAR, AGED 39 AYYANARI HOUSE, WEST BAZAR, AREEKKAD, CHERUVANNUR AMSOM, KOZHIKODE. BY ADV. SRI.K.M.JAMALUDHEEN SMT.LATHA PRABHAKARAN RESPONDENTS: RESPONDENT IN APPEAL/STATE ------------------------------------------------------ STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. C.M NAZER, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== Crl.R.P. No. 2246 of 2008 ========================== Dated this the 7th day of August, 2008. ORDER The revision petitioner who is the accused in C.C No. 241 of 2003 on the file of the Judicial First Class Magistrate-V, Kozhikode, which was a prosecution instituted by the Sub Inspector of Police, Nallalam for an offence punishable under Section 379 IPC, with regard to a Bajaj M-80 motorcycle bearing registration No. KL-11.N.1058, challenges the remand order passed by the Sessions Court, Kozhikode in Crl. Appeal No. 531 of 2008. The revision petitioner was convicted by the trial court for the said offence and sentenced to rigorous imprisonment for one year. The learned Sessions Judge found the documentary evidence not sufficient to record a conviction against the accused. He, however, set aside the judgment of conviction and sentence passed by the trial court and remitted the case to the trial court for fresh disposal, after giving the prosecution an opportunity to adduce further evidence. It is the said order which is assailed in this revision. CRL.R.P. NO. 2246/2008 : 2: 2. I heard both sides. 3. This was a case instituted on a police report after investigation by the Nallalam police. The appellate court was expected to decide the appeal on the materials on record. The lower appellate court was not expected to take up the role of a prosecutor and attempt to fill up the lacuna in the evidence adduced by the prosecution. If that court found the evidence deficient to record a conviction, then it should have given the benefit of doubt to the accused instead of giving the prosecution a further opportunity to adduce evidence which will have the effect of a further investigation falling under Section 173(8) Cr.P.C. The judgment under appeal is accordingly set aside and the matter is remitted to the lower appellate court for disposal of the appeal afresh with the evidence already on record. The revision petitioner shall appear before the lower appellate court without any further notice on 20.08.2008. This Crl.R.P. is disposed of as above. Dated this the 7th day of August, 2008. V. RAMKUMAR, JUDGE. CRL.R.P. NO. 2246/2008 : 3: rv