The judgment emphasized that the trial cannot be split and highlighted the interpretation and application of section 311 of the Criminal Procedure Code.

JUDGMENT

Rohit B Deo, J. - Heard Mr. A. Ananthakrishnan, the learned counsel for the petitioner and Mr. S.S. Doifode, the learned APP for respondent 1/State. The learned counsel representing respondents 2 and 3 did not appear, and therefore, this Court requested Mr. M.K. Pathan, the learned counsel to represent respondents 2 and 3 as Amicus Curiae. Accordingly, Mr. M.K. Pathan, the learned counsel has assisted the Court.

2. The petitioner and respondents 2 and 3 faced trial for offences punishable under sections 420, 465, 468, 471 read with section 34 of Indian Penal Code ("IPC") in Regular Criminal Case 3/2007.

3. The learned Judicial Magistrate First Class (Court 3) was pleased to acquit the petitioner and convict the respondents 2 and 3 vide judgment dated 15.3.2014.

4. The State did not challenge the acquittal of the petitioner.

5. Respondents 2 and 3 challenged the conviction in Criminal Appeal 40/2014.

6. Respondents 2 and 3 preferred application (Exh. 27) in the Criminal Appeal purportedly under section 311 of the Criminal Procedure Code, 1973 ("Code") seeking recall of the complainant (PW 1) for further cross-examination and for summoning the Investigating Officer, who was not examined in the trial, for adducing evidence. The State opposed the application under section 311 of Criminal Procedure Code ("Code") inter alia contending that the power under section 311 of the Code is available only till the conclusion of the trial, and could not be exercised by the appellate Court.

7. The District Judge-1 and Additional Sessions Judge, Wardha partly allowed the appeal. The judgment dated 15.3.2014 in Regular Criminal Case 2007 was set aside and the trial Court was directed to re-examine the complainant (PW 1) and examine the Investigating Officer.

8. The petitioner, whose acquittal had assumed finality since the State did not challenge the same, and who was neither a party to Criminal Appeal 40/2014 nor was heard by the learned Sessions Judge before setting aside the judgment dated 15.3.2014 in Regular Criminal Case 3/2007, is assailing the said judgment by invoking this Court's jurisdiction under Articles 226 and 227 of the Constitution of India.

9. The learned counsel for the petitioner Mr. A. Ananthkrishnan would submit that the learned Sessions Judge committed a serious error in allowing the application under section 311 of the Code. Mr. Ananthkrishnan would then submit that the acquittal of the petitioner had assumed finality and the learned Sessions Judge manifestly erred in setting aside the judgment of the trial Court, which in essence, sets aside the acquittal of the petitioner, and that too, without hearing the petitioner. Mr. Ananthkrishnan would emphasize that the petitioner was neither a party to the criminal appeal preferred by the respondents 2 and 3 challenging their conviction, nor was the petitioner noticed or heard by the learned Sessions Judge nor did the State challenge the acquittal of the petitioner. Mr. Ananthkrishnan submits that since the trial cannot be split, the effect and implication of the judgment of the learned Sessions Judge would be that the petitioner would face the trial along with the respondents 2 and 3, which is clearly impermissible in law.

10. Before I consider the submissions advanced, few facts may be noted.

11. Respondent 2 -Kishor Khurana was arraigned as accused in Regular Criminal Case 260/2002. He was ordered to be released on furnishing surety of Rs. 5,000/-. Respondent 3 -Mukund Khurana, who intended to stand as surety, produced certain documents inter alia 7/12 extract, on which court fee stamp of Rs. 5/- was affixed. The 7/12 extract was sent to the Naib Tahsildar for verification. The report submitted by the said officer revealed that the original remark on the 7/12 extract was concealed by fixing the Court fee stamp. The Assistant Superintendent of the Pulgaon Court lodged report implicating Kishor Khurana, Mukund Khurana and the petitioner. Culmination of the investigation led to s