Petitioner has preferred this revision petition under Section 397

read with Section 401 of Cr.P.C., being aggrieved by the judgment

dated 14.05.2020 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

08.10.2015 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

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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 vs. State of Assam, reported

as (2009)14 SCC 541 remanded the matter 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 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 14.05.2020. 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. vs. State of West Bengal & Ors. reported

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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 vs.

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

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