N.K. Balakrishnan, J.

1. The revision petitioner was convicted by the learned Magistrate for offences punishable under Secs. 40(2) and 57 r/w 51 of Wildlife (Protection) Act (hereinafter referred to as "Act"). But the learned Magistrate released the petitioner on probation for one year under Sec. 4 of Probation of Offenders Act on his executing a bond for Rs. 5,000/-. Besides, the petitioner and other accused were directed to pay Rs. 3,000/- each as compensation to the aggrieved. That conviction and sentence passed against the petitioner herein was challenged before the appellate court. The learned Additional Sessions Judge concurred with the conviction, but noticed that the trial court did not award the proper sentence as mandated under the relevant provisions of the Wildlife (Protection) Act and so the case was remitted back to the trial court for fresh consideration of the sentence to be awarded against the petitioner. That order of remand passed by the appellate court is challenged by the accused in this revision. The learned counsel for the revision petitioner submits that in the appeal filed by the accused challenging the conviction, appellate court is not entitled to enhance the sentence and if that be so, the appellate court cannot, after confirming the conviction, remand the case to the trial court for awarding proper sentence which in the context of this case is to enhance the sentence.

2. Sri. P.S. Appu, the learned counsel appearing for the petitioner has relied upon the decision of Andhra Pradesh High Court in Maruthi College of Engineering and Technology, Hyderabad (M/s.) and Another v. State of Andhra Pradesh and Another, 2011 KHC 6059 in support of his submission that there is no power for the criminal appellate court to remand a case like a civil appellate court and that the option open to the appellate court is to order re-trial of the case.

3. Sri. M.P. Madhavankutty, Special Prosecutor for Forest has relied upon the decision of the Division Bench of this court in Ishaque Vs. Raveendran Thampan, to fortify his submission that it is permissible for the appellate court to remand a matter after upholding the conviction and setting aside the existing sentence for imposing an appropriate or just sentence. The decisions in Santa Singh v. State of Punjab, AIR 1976 SC 2386 and Nirpal Singh and Others Vs. State of Haryana, of the Supreme Court were relied upon by the Division Bench and held that the appellate court can after upholding the finding of guilt remand the matter to the trial court solely for the purpose of imposing an appropriate sentence.

It was held by the Division Bench in Ishaque Vs. Raveendran Thampan,: It is perfectly possible to contemplate a penal provision in a statute which prescribes only a substantive sentence of imprisonment and no fine at all. In fact, S. 119(2) and 345 IPC are instances where the law prescribes only a substantive sentence of imprisonment but no fine. If in such a prosecution where only substantive sentence of imprisonment is permissible, the Trial Court imposes erroneously a sentence of fine alone and the accused challenges such conviction and sentence, the court is likely to find itself in a precarious situation. It may take the view that the conviction is justified. The challenge of the accused that the sentence is illegal and not justified by the penal provision would be correct. The Trial Court having chosen to impose a sentence of fine, the Appellate Court would not be able to enhance the sentence and impose any substantive sentence of imprisonment. In that situation, the only course open to the Appellate Court would be to uphold the conviction, set aside the sentence which is illegal and allow the accused to go scot-free. That cannot obviously be the law, according to us. To avoid such precarious and absurd situation also, it is essential and necessary that a purposive expanded meaning must be assigned to the expression "finding and sentence" in S. 386(b) (i) of the