ORDER

1. Petitioner has preferred this revision petition under section 397 read with section 401 of Cr.P.C., being aggrieved by the judgment dated 14.5.2020 passed by learned Fourth Additional Sessions Judge, Shujalpur, District Shajapur, in Criminal Appeal No.385/2015 whereby learned appellate Court has set aside the judgment dated 8.10.2015 passed by Judicial Magistrate First Class, Shujalpur, District Shajapur, in Criminal Case No.1457/2011 and remitted the case back to the trial Court for re-examining the prosecution witness under section 311 of Cr.P.C and to pass a reasoned and cogent order.

2. In order to decide this criminal revision, brief facts of the case is that the petitioners were tried by the Judicial Magistrate First Class, Shujalpur, District Shajapur and after considering the evidence available on record the petitioner no.1 was convicted under sections 419, 120(B) of I.P.C, sentenced to undergo 1 year R.I., and fine of Rs.100/- with default stipulations and petitioner No.2 was convicted for offence under section 120(B) of IPC, 3(d)4 of M.P. Manyata Prapt Parisksha Adhiniyam 1937, sentenced to undergo 1 year and 1 year R.I. and fine of Rs.100/- under each sections, with default stipulations. Being aggrieved by the aforesaid judgment, the petitioners have filed an appeal before Fourth Additional Sessions Judge, Shujalpur, District Shajapur, wherein learned Appellate Court in compliance of law laid down by this Court in the Case of Mussauddin Ahmed v. State of Assam, reported as (2009)14 SCC 541 remanded the matter to the trial Court for reexamining the prosecution witness under section 311 of Cr.P.C and to pass a reasoned and cogent order after affording the opportunity of defence evidence. Being dissatisfied by the impugned order, the petitioner has knocked the portal of this Court by filing this revision petition submitting that the impugned judgment passed by learned appellate Court is neither legal nor proper.

3. The petitioner in his revision memo and during the course of arguments submitted that the impugned judgment of the learned appellant Court is against the fact and also against the settled principle of law. The petitioners have been charged twice for the same offence due to the perverse directions issued vide judgment dated 14.5.2020. It is submitted that first and foremost, it is visualized from the bare perusal of the impugned judgment that learned appellate Court has remitted back the matter for the purpose of filling up the loop holes in the prosecution case, which is wrong and illegal, therefore not sustainable in the eyes of law. It is also submitted that in case, if the incriminating piece of evidence is available against accused and opportunity to explain that evidence has not been afforded to the accused, then on that basis conviction cannot be carried out.

4. In the course of arguments, learned counsel for the appellant relied upon the judgment passed by Hon?ble Supreme Court in the case of Satyajit Banerjee & Ors. v. State of West Bengal & Ors. reported in (2005) 1 SCC 115 wherein it has been held that direction for retrial should not be made in all or every case, it is only when the extraordinary situation of the first trial being found to the a farce and a “mock trial” obtains. It is further submitted that the remand of the case for retrial and for fresh decision from stage one is impermissible as there is apprehension on part of the accused that these observations would bias the trial Court. The directions of the learned Appellate Court for retrial and resultantly reinvestigation of the matter would make the earlier investigation and trial futile.

5. Learned counsel further placed reliance upon the judgment delivered by Hon?ble Apex Court in the case of Rajendra Prasad v. Narcotic Cell reported in (1996) 6 SCC 110 and submitted that though the witnesses can be recalled and re-summoned, but power under section 311 of Cr.P.C., cannot be exercised to fill up lacuna in the prosecution case. Lacu