An appellate court must adhere to statutory provisions when ordering a retrial or remand; failure to comply renders the remand illegal.

1. Heard Mr. M. Kar Bhowmik, learned senior counsel along with Mr. A. K. Deb, learned counsel for the petitioners and Mr. D. Sarkar, learned Public Prosecutor for the respondent.

2. This criminal revision has been laid against the Judgment and Order dated 5-9-1997 passed by the learned Additional Sessions Judge, Belonia, South Tripura in Criminal Appeal No. 16(2) / 97 setting aside the Judgment and Order of conviction and sentence dated 21-5-1997 passed by the learned Sub-Divisional Judicial Magistrate, Belonia, South Tripura in connection with G. R. 97/1994 and remanding back the matter to the learned Trial court for recording evidences of the 'remaining material witnesses' and for passing Judgment afresh accordingly.

3. The prosecution case, briefly stated, is that, on 13-5-1994 at about 6-30 a.m., the appellants accused persons having formed unlawful assembly armed with deadly weapons entered into the house of the informant, Smt. Bhagyabati Majumdar and forcibly took away her son, Sri Haradhan Majumdar and assaulted him mercilessly causing grievious hurt on his person. While the father of the victim attempted to rescue his son, he was also assaulted and sustained grievous injury. On receipt of the F. I. R. Police registered a case under S. 148/149/325/448 of IPC and on completion of investigation, Police submitted Chargesheet against all the five accused persons / appellants under the aforesaid sections.

4. During trial, the prosecution examined as many as 7 witnesses in support of its case, though there were altogether 17 charge sheeted witnesses, including the victims, Sri Hardhan Majumdar and Sri Ananta Majumdar. It appears that the aforesaid two injured persons, i.e. Sri Hardhan Majumdar and Sri Ananta Majumdar including the medical officer could not be examined on behalf of the prosecution. Upon examination of those prosecution witnesses and on perusal of the materials available on record the learned Trial Court found the appellants / accused persons guilty of the offences under S. 325 read with S. 149 of IPC holding that the prosecution established its case beyond the shadow of reasonable doubt against the accused persons / appellants and accordingly convicted and sentenced them vide judgment dated 21-5-1997 to suffer R. I. for one year each.
A. Being aggrieved by the said conviction and sentence, the appellants preferred the criminal appeal before the learned Additional Sessions Judge Belonia, south Tripura in Criminal Appeal No. 16(2) / 1997 and the learned Additional Sessions Judge upon hearing the learned counsel for the parties and on perusal of the records of the learned Trial Court by his impugned Judgment and Order dated 5-9-1997, instead of disposing the appeal on merit, set aside the order of conviction and sentence passed by the learned Trial Court and remanded back the case as already mentioned above.

5. The only challenge made in this revision is against the order of remand with a condition for recording evidence of the 'remaining material witnesses' by the learned Trial Court and for passing Judgment afresh. The initial conviction and sentence of the petitioners was under S. 325 read with S. 149 of IPC as noted hereinabove and the petitioners were sentenced to undergo R. I. for one year each. The learned Appellate court being confronted with the aforesaid Judgment and conviction observed that out of 17 witnesses, only 7 witnesses were examined by the prosecution without securing attendence of the other prosecution witnesses, especially the victims and injured, Shri Hardhan Majumder and Sri Ananta Majumder as well as the medical officer. The learned Additional Sessio