Judgment UNTWALIA, J. :- It is an unfortunate case where the case has to go back because of an illegal order passed by the Additional Sessions Judge when it was before him in Criminal Appeal 120 of 1958. For the disposal of this application it is not necessary to state the facts of the case in any detail. The petitioner was put upon his trial before Mr. M. Prasad, Magistrate, 1st class, along with eleven others to answer the charges under Sec. 323 of the Penal Code and Sec. 121 of the Railways Act. The other eleven persons were acquitted by the said learned Magistrate, but the petitioner was convicted by his order dated 11th April, 1958, and was awarded a consolidated sentence of rigorous imprisonment for three months under both the sections. The petitioner went up in appeal before the learned Additional Sessions Judge in Criminal Appeal 120 of 1958, and he by his order dated 21st May, 1958, set aside his conviction and sentence on the ground that it was not quite proper and legal to pass a consolidated sentence of imprisonment under both the sections, especially when no sentence of imprisonment could be awarded under Sec. 121 of the Railways Act. In that view of the matter, the order which was passed by the learned Additional Sessions Judge was : "On this ground alone the case must go back to the trial Court on remand for writing out a fresh judgment according to law. The magistrate should show separately the sentence awarded it any under each count. He should also see the provisions of Sec. 121 of the Indian Railways Act on the question of sentence. The decision of the Court below is set aside and the case is sent back for writing out a fresh judgment in accordance with law." 2. After this order of remand, the case came to be heard by Mr. B. P. Srivastava, another Judicial Magistrate holding 1st class powers. It was heard on the same evidence which had been recorded by Mr. M. Prasad, and a fresh order dated 16th September, 1958, was passed by him convicting the petitioner under both those sections, but the learned Magistrate, Mr. B. P. Srivastava, awarded to the petitioner a sentence of two months' rigorous imprisonment under Sec. 323 of the Penal Code and to pay a fine of Rs. M. Prasad, and a fresh order dated 16th September, 1958, was passed by him convicting the petitioner under both those sections, but the learned Magistrate, Mr. B. P. Srivastava, awarded to the petitioner a sentence of two months' rigorous imprisonment under Sec. 323 of the Penal Code and to pay a fine of Rs. 30, in default, further simple imprisonment for a week under section 121 of the Railways Act. The petitioner again went up in appeal in Criminal Appeal 305 of 1958. This appeal also came to be heard by the same presiding officer of the same Court, namely, Mr. S. M. Karim, presiding over the Court of the 1st Additional Sessions Judge of Gaya. He has upheld the conviction and sentence of the petitioner by his judgment and order dated 18th December, 1958. The petitioner has, therefore, come up in revision to this Court. 3. As the point taken on behalf of the petitioner was an important one, the case was directed to be placed before a Division Bench for hearing at the time of admission. The contention raised on behalf of the petitioner is that the learned Additional Sessions Judge passed an illegal order in Criminal Appeal 120 of 1958, inasmuch as, he had no power to pass an order of remand under section 423 of the Code of Criminal Procedure of the kind he did. On certain grounds he had the power to order a retrial, but he had no power to direct the trying Magistrate to write out a fresh judgment only because of the illegality committed by him in awarding a consolidated sentence of imprisonment for the conviction of the petitioner under the two sections of the two statutes mentioned above. Learned counsel further submitted that as a result of the illegal order passed by him, Mr. B.P. Srivastava did not get any jurisdiction to pass any fresh order of conviction against the petitioner, and, therefore, the present order passed in Criminal Appeal 305 of 1958 is also without jurisdiction. In the first instance, a prayer was made before us that the conviction should be set aside on these grounds, or, in the alternative, we were asked to direct the lower appellate Court to rehear Criminal Appeal 120 of 1958 directed against the order of conviction passed by Mr. M. Prasad and to dispose it of according to law. 4. In the first instance, a prayer was made before us that the conviction should be set aside on these grounds, or, in the alternative, we were asked to direct the lower appellate Court to rehear Criminal Appeal 120 of 1958 directed against the order of conviction passed by Mr. M. Prasad and to dispose it of according to law. 4. In my opinion, the contention that the order of remand dated 31st May, 1958, passed by the learned Additional Sessions Judge was illegal is sound and has got to be accepted. It seems that the learned Judge did not take proper care to look to the provisions of Sec. 423 of the Code of Criminal Procedure and to see for himself as to what exact powers he possessed under the Code as an appellate Court hearing appeals against orders of conviction. The powers are enumerated in clause (b) of sub-section (1) of that section. It is obvious that the learned Additional Sessions Judge, if otherwise he was convinced that the conviction of the petitioner was good, could himself rectify the illegality in the imposition of the sentence. But, instead of doing that, he chose to pass an order of remand and directed the learned Magistrate to merely rewrite a judgment on the same evidence, keeping in view the proper and legal sentence which ought to have been imposed under the two sections. In my opinion, therefore, the order was wholly illegal, and it follows as a matter of corollary that the fresh order of conviction passed by Mr. B. P. Srivastava an 16th September, 1958 cannot stand. This view is covered by three authorities of this Court, the first being an authority of a Division Bench, namely, Gajanand Thakur v. Emperor, AIR 1916 Pat 219. Sri Krishna Prasad Sinha v. Emperor, AIR 1936 Pat 438 and Ramchandra Prasad v. Emperor, AIR 1937 Pat 246. 5. The learned Standing Counsel appearing on behalf of the State had to concede and fairly conceded that the order of remand passed by the learned Additional Sessions Judge in Criminal Appeal 120 of 1958 was illegal, but he urged before us that on the facts and in the circumstances of this case we should not interfere with the present order of conviction in exercise of our revisional jurisdiction, as no prejudice had been caused to the petitioner. In support of the procedure which he invited us to adopt, he relied upon the very same decision in the case of Gajanand Thakur, AIR 1916 Pat 219. There an order of conviction was passed by a Magistrate in the first instance. In an appeal against that order the appellate Court directed certain fresh evidence to be taken. Instead of adopting the procedure of taking fresh evidence in accordance with the provisions of the Code of Criminal Procedure, he set aside the order of conviction and remanded the case to the trial Court for a limited retrial in the sense of taking only the additional evidence and to write out a fresh judgment on the evidence on record, including the additional evidence which was directed to be taken. The learned Magistrate, as it appears from the report, who was the same Magistrate in that case, took the additional evidence and again passed an order of conviction. In the fresh appeal which was taken against the second order of conviction, the parties before the appellate Court agreed that the additional evidence should be left out of consideration. It was so left out, and the appellate Court maintained the conviction even on the original evidence without the aid of the additional evidence. There was a revision to this Court, and in revision Chamier, C. J., said : "Ordinarily the proper course to take would have been to set aside all the proceedings subsequent to the alleged illegal order and to require the Sessions Judge to record a fresh judgment on the evidence originally recorded or send the case to, another Sessions Judge for that purpose, but as both sides had asked the Sessions Judge to disregard entirely all the additional evidence and the Sessions Judge had already recorded his findings on the original evidence only, it seemed to me unnecessary to return the case to the Sessions Judge in order that he might record a fresh judgment................. I was satisfied before, and I am still more satisfied now, that the accused were in no way prejudiced by the failure of the first Sessions Judge to make an order in strict compliance either under S. 423 or under Sec. 428, Criminal P. C." Jwala Prasad, J. who agreed in maintaining the conviction of the applicants also observed like this : "It appears to me that the order of the Sessions Judge dated 6th May 1915, setting aside the convictions and sentences, ordering retrial of the accused, and directing the Magistrate to take additional Evidence, but at the same time requiring him to record a fresh decision on evidence already on the record of the case and upon the additional evidence which he was directed to take, was wholly illegal.........In the present case it is clear that the accused have not in any way been prejudiced by the order complained of for the case has been decided on the evidence originally recorded. Under the circumstances, a retrial by the Magistrate is not necessary." In view of those observations, we carefully considered the matter as to whether we should exercise our revisional jurisdiction in the instant case, and my conclusion is that as to whether such powers should be exercised or not depends upon the facts and circumstances of each particular case. Here, the order of remand passed by the learned Additional Sessions Judge was, as I have said above, wholly illegal. He had set aside the order of conviction passed by Mr. M. Prasad. In that view of the matter, the order of conviction passed by Mr. B. P. Srivastava after the illegal order of remand is also bad in law. If we do not interfere in this revision, the result will be that an illegal order of conviction, will remain in existence against the petitioner. At the same time, I am conscious that the result of our decision that the order of the learned Additional Sessions Judge was illegal is that it was illegal in all respects; that is to say, the order of conviction passed by Mr. M. Prasad stands. But, that order cannot be allowed to stand in this revision without giving a chance to the petitioner to get his Criminal Appeal 120 of 1958 heard on merits. 6. M. Prasad stands. But, that order cannot be allowed to stand in this revision without giving a chance to the petitioner to get his Criminal Appeal 120 of 1958 heard on merits. 6. I, therefore, allow this application and set aside the order of the lower appellate Court as also the order dated 16th September, 1958, passed by Mr. B. P. Srivastava, in exercise of our revisional powers. I would also set aside the order of the learned Additional Sessions Judge dated 31st May, 1958, passed in Criminal Appeal 120 of 1958. Mr. Akbar Imam appearing for the petitioner did not pray for any fresh notice or opportunity to show cause against the exercise of our revisional powers for setting aside the said order, as he himself made a prayer, in the alternative, to send the case back to the lower appellate Court for hearing and for disposal of Criminal Appeal 120 of 1958 on merits. I do not think that because of the illegal order of remand the conviction of the petitioner can or should be set aside in this revision. The case is, therefore, sent back to the lower appellate Court with a direction that Criminal Appeal 120 of 1958 shall be reheard on merits and be decided according to law. I must state one thing more, that is, I have neither expressed, nor should I be understood in any way to have expressed, any opinion with regard to the merits of the case. 7. SAHAI, J. :- I agree. Order accordingly.