Judgment 1. The petitioner was convicted in respect of the offence under Sec.380 of the Indian Penal Code to undergo rigorous imprisonment for six months. 2. The case of the prosecution in short is that informant Chiranji Jha (P.W. 5) was the tenant of the petitioner at the monthly rental of Rs. 8/-. The petitioner insisted for an enhancement of the rent. The informant did not accept the request of the petitioner. It is said that on the 20th of October, 1966, the informant, Chiranji Jha, went to his village. When he came back on the 1st of November, 1966, he found his lock broken and another lock was fixed in his room. It is said that the petitioner removed the articles of the informant from his room. On these facts the trial Court convicted the petitioner and sentenced him as stated above. 3. Against that judgement the petitioner preferred an appeal to the Sessions Judge. In appeal, the learned Assistant Sessions Judge was pleased to remand the case for examining the investigating officer. The learned Assistant Sessions Judge directed that after, examining the investigating officer the Magistrate will give a fresh decision in accordance with law. 4. In this case the investigating officer could not be examined, although the trial Court waited for about nine months for his examination. The appellate court remanded the matter for the examination of the investigating officer for the simple reason that the attention of the P.Ws. 2, 3, 4 and 5 was drawn by the defence lawyer to certain contradictory statement made by the investigating officer. 5. Learned Counsel for the petitioner challenges the order of remand on the ground that the appellate court had no such power to remand the matter for the examination of the investigating officer only. In this connection he refers to Sec. 428 of the Code of Criminal Procedure. It is relevant at this stage to quote Sec. 428 of the Code which reads thus : "(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons, and may either take such evidence itself, or direct it to be taken by a Magistrate, or, when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal. (3) Unless the Appellate Court otherwise directs, the accused or his pleader shall be present when the additional evidence is taken, but such evidence shall not be taken in the presence of Jurors. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXV, as if it were an inquiry." On a perusal of the section, it is clear that the appellate court has the power to direct the subordinate court to take evidence of witnesses. Thereupon the subordinate Court shall examine the witness and shall certify such evidence to the appellate court, thereafter the appellate court shall proceed to dispose of the appeal. If the appellate court is of opinion that some additional evidence is required to be taken in a case, the appellate court is entitled to direct the court below to take such evidence. In the present case, if the appellate court was of opinion that examination of the investigating officer was essential in the ends of justice, he could have directed so under Sec. 428 of the Code of Criminal Procedure, but it had no authority to remand the whole case back to the magistrate for fresh consideration. In case the appellate court wants to direct for retrial, then in that case the appellate court can remand the whole matter for retrial. In the present case the appellate court did not direct for retrial and as such the order is illegal. 6. In the present case the prosecution was required to prove as to whether P.W. 5 (informant) was the tenant of the petitioner or not. In this connection, the finding of the trial court at paragraph 6 is relevant. In the present case the appellate court did not direct for retrial and as such the order is illegal. 6. In the present case the prosecution was required to prove as to whether P.W. 5 (informant) was the tenant of the petitioner or not. In this connection, the finding of the trial court at paragraph 6 is relevant. It is relevant at this stage to quote the finding of the appellate court in paragraph 6, which runs thus : ".........But I like to note that not a chit of paper has been filed on behalf of the prosecution to prove that the informant was ever a Kirayadar in the room of accused appellant although it has been clearly denied by the accused appellant that the informant was ever his Kirayadar........." It is clear from this finding of the appellate court that there was no reliable evidence to suggest that P.W. 5 was the tenant of the petitioner. 7 In the result I give benefit of doubt to the petitioner for the simple reason that the prosecution failed to prove that P.W. 5 was the tenant of the petitioner and accordingly I set aside the order of conviction.