The appellate court can set aside an order of acquittal passed by the trial court if the trial court took into consideration irrelevant circumstances and did not consider relevant evidence in passing the order of acquittal.

The petitioner has preferred this revisional application challenging the judgment and order dated September 24, 2012 passed by learned Additional Sessions Judge, 3rd Fast Track Court, Bichar Bhawan, Calcutta in Criminal Appeal No.20/2012, by which learned Additional Sessions Judge had set aside the judgment and order dated April 30, 2011 passed by learned Metropolitan Magistrate, 6th Court, Calcutta in G.R. No.965/2002 and remanded the case back to the trial court for fresh judgment.

2. The backdrop of the present revisional application is as follows:-

On June 25, 2002 at about 10-30 a.m. the petitioner along with another person came to the house of the opposite party no.2/defacto complainant for making valuation of one gold ring studded with 32 carats diamond. When the defacto complainant handed over the diamond ring to the petitioner, his behavior made the defacto complainant suspicious. The defacto complainant asked for return of the diamond ring from the petitioner who, without returning the diamond ring, intimidated the defacto complainant with one toy revolver and fled away. The incident was reported to the police station by filing a written complaint on the basis of which Posta Police Station Case No.89 dated June 25, 2002 under Sections 382/114 of the Indian Penal Code came into existence. The police investigated the said criminal case and submitted charge sheet in due course. On consideration of the evidence adduced before the trial court, the trial court acquitted the petitioner of the charge under Section 382 of the Indian Penal Code. The said judgment of acquittal was challenged by the opposite party no.2/defacto complainant before the court of sessions by preferring Criminal Appeal No. 20 of 2012. The learned Additional Sessions Judge, 3rd Fast Track Court, Bichar Bhawan, Calcutta disposed of Criminal Appeal No.20 of 2012 by setting aside the order of acquittal passed by learned Magistrate and by remitting the case back to the trial court for examination of charge sheeted witnesses particularly the seizure witnesses and to take additional evidence if any by invoking Section 311 of the Code of Criminal Procedure and to write fresh judgment. The said order passed in Criminal Appeal No.20 of 2012 is under challenge in this revision at the instance of the petitioner/accused person.

3. Mr. S. Bardhan, learned counsel appearing on behalf of the petitioner contends that the petitioner being the accused person has already suffered for about 14 years and that no fruitful purpose will be served by remitting the case back to the trial court after inordinate delay. He specifically submits that the appellate court cannot pass order of remand to fill up the lacunae in the evidence of the prosecution when the case already ended in acquittal. He also contends that the seizure witnesses did not turn up before the trial court and the court gave opportunity to the prosecution on four consecutive dates for examination of the prosecution witnesses in general and seizure witnesses in particular and as such the appellate court cannot pass the order of remand for examination of those seizure witnesses. By referring to the decisions of Supreme Court in “Ganesha v. Sharanappa” reported in (2014) 1 SCC (Cri) 8 and in “Bablu Kumar v. State of Bihar” reported in 2015 SAR (Cri) 968, Mr. Bardhan has advanced his argument on the role of the revisional court in setting aside an order of acquittal passed by the trial court.

4. In “Ganesha v. Sharanappa” (supra), the Supreme Court has laid down when the High Court can exercise the power of the appellate court in exercising the power of revision under Section 401 of the Code of Criminal Procedure. In “Bablu Kumar v. State of Bihar” (supra), the Supreme Court has quoted three Judge Bench decision of “K. Chinnaswamy Reddy v. State of Andhra Pradesh” in paragraph 6 and laid down the revisional power of the High Court in setting aside an order of acquittal. In both the above reports, the order of