Hon'ble Harsh Kumar, J.

1. Heard Sri Vijay Prakash learned counsel for the revisionists, Sri Ashutosh Yadav learned counsel for opposite party no. 2 and learned A.G.A. and perused the record.

2. This revision has been filed against the judgment and order dated 30.06.2011 passed by Additional Sessions Judge/Special Judge Anti Corruption (C.B.I.) Ghaziabad in Criminal Appeal No. 30 of 2009, arising out of Criminal Case No. 2223-A of 2006, Case Crime No. 4 of 1998, under Section 498A I.P.C. and Section ¾ Dowry Prohibition Act, P.S. Vijai Nagar, District Ghaziabad by which the judgment and order of conviction of appellants dated 06.03.2009 passed by Magistrate, was set aside and the matter was remitted back to the Magistrate for disposal in the light of the observations made in the body of the judgment and in accordance with law.

3. Feeling aggrieved, the accused have preferred this revision.

4. The learned counsel for the revisionists contended that the revisionists are mother-in-law and father-in-law of the victim and have been falsely implicated in Case Crime No. 04 of 1998 under Sections 498-A, 323/34, 354, 506, I.P.C. & Section ¾ Dowry Prohibition Act; that the learned Magistrate in final disposal of trial, vide order dated 06.03.2009 convicted the revisionists and sentenced them for offences under Section 498-A I.P.C. and Section ¾ Dowry Prohibition Act with simple imprisonment for a period of six months and fine of Rs. 2000/- each under Section 498-A I.P.C. and with similar punishment under Section 4 of Dowry Prohibition Act; that the FIR of the case has been lodged by opposite party no. 2 as a matter of counter blast, after service of notice for restitution of conjugal rights dated 16.06.1998 by her husband, through application under Section 156(3) Cr.P.C. dated 07.08.1998, with absolutely wrong and baseless allegations of victim having been ousted from her matrimonial house on 24.09.1997, that the husband of victim has filed a petition under Section 9 of the Hindu Marriage Act against her for a decree of restitution of conjugal rights; that the FIR has been lodged by sheer misuse of the provisions of Section 156(3) Cr.P.C. but learned Appellate Court acted wrongly is not considering this point; that apart from it, the learned Appellate Court has come to the conclusion that there was defective examination of accused-revisionists under Section 313 Cr.P.C. which has caused prejudice to their rights; that defective examination of accused under Section 313 Cr.P.C. vitiates the trial and the appellate court ought to have been acquitted the revisionists of the charges framed against them; that the Appellate Court had no jurisdiction to remand the matter for de novo trial on the ground of defective examination of accused under Section 313 Cr.P.C. that the de novo trial could not have been directed and the appellate court has committed mistake in passing the impugned order for de novo trial by the Trial Court; that the impugned order passed by Appellate Court is liable to be set aside and revisionists are liable to be acquitted.

5. He has placed reliance on the recent judgment of Apex Court in the case of Ajay Kumar Ghosal vs. State of Bihar and Another, AIR 2017 SC 804 : 2017 Cr. L.J. 1428, contending that in above case, it has been held that the provisions Section 386(b) Cr.P.C. should not be exercised in routine manner and the guiding factor for re-trial must always be the demand of justice.

6. Per contra, learned A.G.A and learned counsel for the opposite party no. 2 Smt. Kamlesh supported the impugned judgment and order of remand and contended that the revisionists did not raise any plea about defective examination under Section 313 Cr.P.C. in appeal and since on the above point, a finding has been given by the Appellate Court suo-motu, raising of this plea through this revision is not permissible under law; that by the impugned order, the Appellate Court has not directed de novo trial or fresh trial after recording