IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 2239 of 2007 Date of Decision : May 25, 2011. Jaggu and another ....... Petitioners Versus Satbir ..... Respondent CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL. Present:- Mr. Parminder Singh, Advocate, for the petitioners. None for the respondent. M. JEYAPAUL, J. (ORAL) The revision petitioners herein were prosecuted before the trial Court for offences under Sections 33/506/34 of the Indian Penal Code (in short 'IPC') on the basis of a complaint lodged by the respondent herein. The trial Court having converted the case as a warrant case committed certain irregularities while conducting the trial of the case. The matter was taken up by the appellate Court at the instance of the petitioners herein. The appellate Court having found that serious irregularities were committed in the trial procedure adhered to by the trial Court thought it fit to remand the matter for re-trial. The appellate Court made an observation that the trial Court having converted the case as a warrant case failed to examine the witnesses afresh in the presence of the accused as contemplated under Section 244 Code of Criminal Procedure (in short 'Cr.P.C.'). Pointing out the various irregularities, the appellate Court remanded the matter for re-trial on 16.10.2007. 2. The revision petitioners herein having aggrieved by the order of remand passed by the appellate Court have preferred the present criminal revision petition. It is contended by the learned counsel appearing for the revision petitioners that once material irregularity has been noticed by the appellate Court, trial is vitiated and, therefore, the benefit should be given to the accused and they should be acquitted of the charges. Inspite of the notice Crl. Revision No. 2239 of 2007 -2- issued to the respondent, neither the respondent made his appearance nor anyone put in appearance on behalf of the respondent. Thus, this Court has lost the opportunity of hearing the respondent. 3. In my considered view, the appellate Court has every authority to remand the matter back for re-trial if any irregularity in procedure as contemplated under the Code of Criminal Procedure has been committed by the trial Court. 4. Of course, learned counsel appearing for the revision petitioners would refer to the decision of this Court in Rakesh and another Versus State of Haryana 2005 (3) RCR (Criminal) 757, wherein it has been observed in the context of the provision under Section 138 of the Indian Evidence Act, 1872 that the witnesses shall be first examined in chief and then if the adverse party so desires, such witnesses shall be cross examined. Such witnesses also be subjected to re-examination, if the party calling him so desires. 5. The provision under Section 138 of the Indian Evidence Act has been virtually re-stated in the aforesaid decision of this Court. In my considered view, the observation made in the above decision does not have any relevance to this case. 6. Learned counsel appearing for the revision petitioners would also refer to a decision in Praveen Kumar Versus State of Rajasthan 1997 (1) RCR (Criminal) 464. That was a case, where the material question as to whether the criminal proceedings are liable to be quashed under Section 482 Cr.P.C. when material irregularity was committed by the trial Court was taken up and decided. The aforesaid decision also does not apply to the facts of this case where an order of remand by the appellate court is under challenge. 7. The accused/revision petitioners herein cannot take advantage of the irregularity in procedure adhered to by the trial Court and pointed out by Crl. Revision No. 2239 of 2007 -3- the appellate Court. When the appellate Court has authority under Section 386 Cr.P.C. to send the matter back to the trial Court for re-trial finding certain irregularity in procedure, the revision petitioners cannot lawfully canvas for acquittal on the ground that some irregularity in procedure was pointed out by the appellate Court. The revision petitioners will have to necessarily face the re-trial as directed by the appellate Court. I do not find any merit in the revision petition. Therefore, the revision petition stands dismissed. The revision petitioners shall appear before the trial Court on 15.7.2011. It is submitted by the learned counsel appearing for the revision petitioners that second petitioner has expired during the pendency of this revision petition. The same be verified by the trial Court and the trial be proceeded in accordance with law. (M. JEYAPAUL) JUDGE May 25, 2011. sjks.