( 1 ) IN this Petition the judgment dated 4-12-1976 passed by the sessions Judge, North Kanara, Karwar, in Criminal Appeal No. 89 of 1976, directing re-trial of Criminal Case No. 2245 of 1974 on the file of the Chief Judicial Magistrate, North Kanara, Karwar, is challenged. The few facts necessary may be started as follows : the petitioner A-1 was convicted by the Chief Judicial Magistrate, north Kanara, Karwar, in Criminal Case No. 2245 of 1974 for the offence under S. 408 of the Indian Penal Code and sentenced to undergo rigorous Imprisonment for nine months and to pay a fine of Rs. 500/- and in default to undergo rigorous imprisonment for two months. The other accused viz. , Nagesh Ramachandra Beleef (A. 2) was acquitted by the Chief Judicial Magistrate. The petitioner-Al filed the said criminal appeal. ( 2 ) THE learned Sessions Judge has set aside the conviction and sentence passed on the petitioner-A. 1 and ordered re-trial from the stage before the prosecution evidence was closed on 25-5-1976, and directed the Chief Judicial Magistrate to dispose of the case in accordance with law. The learned Sessions Judge has in the course of his judgment, narrated the cases of the prosecution and the defence, and the nature of the evidence adduced by the prosecution in support of the charge. He has also narrated the arguments advanced on both sides on merits. He has not recorded any finding on merits. He has found fault with the lower Court in not summoning and examining C. W. 23 Salimath whose evidence, according to him, was essential for a just decision in the case. He has observed that on 25-5-1976, as disclosed in the order-sheet maintained by the Chief Judicial Magistrate, it is recorded as 'prosecution evidence closed'. In this regard, he has reasoned that there being no memo submitted by the prosecutor conducting the prosecution that he had given up the remaining witnesses cited in the charge-sheet and there being no other material to show that in fact the prosecution had really closed its case, it should be inferred that the prosecution had not really closed its case and it had some more witnesses to be examined and as such opportunity for examining C. W. 23 had not been properly afforded by the Chief Judicial Magistrate. It is on the basis of this reasoning he has directed re-trial from the stage the prosecution case stood as on 25-5-1976. ( 3 ) SRI T. S. Ramachandra, the learned Advocate appearing on behalf of the petitioner-A. 1, urged that such a power is not vested in an appellate court and the learned appellate Judge has ignored the decision of the supreme Court in Ukha Kolhe vs. State of Maharashtra , AIR 1963 SC 1531 the said decision deals with Ss. 423 and 428 of the Code of Criminal Procedure, 1898 (to be hereinafter referred to as the 'code of 1898' ). ( 4 ) THE powers exercisable by the appellate Court are found in S. 386 of the Code of Criminal Procedure, 1973 (to be hereinafter referred to as the 'code of 1973' ). One of the powers is to order re-trial also. S. 428 of the Code of 1898 is the same as S. 391 of the Code of 1973. It is laid down therein that 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, and that 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. ( 5 ) WHILE dealing with such a, provision in the Code of 1898, the Supreme court has in the afore-cited decision, laid down that an order for re-trial of a criminal case is made in exceptional cases and not unless the appellate court is satisfied that the Court trying the proceeding had no jurisdiction to try it or that the trial was vitiated by serious illegalities or irregularities or on account of misconception of the nature of the proceedings and on that account in substance there had been no real trial or that the prosecutor or an accused was, for reasons over which he had no control, prevented from leading or tendering evidence material to the charge and in the interests of justice the appellate Court deems it appropriate, having regard to the circumstances of the case, that the accused should be put on his trial again. Further on it has laid down that an order of re-trial wipes out from the record the earlier proceeding and exposes the person accused to another trial which affords the prosecutor an opportunity to rectify the infirmities disclosed in the earlier trial, and will not ordinarily be countenanced when it is made merely to enable the prosecutor to lead evidence which he could but has not cared to lead either on account of insufficient appreciation of the nature of the case or for other reasons. The ratio decidendi of this case is that re-trial should not be ordered merely to enable the prosecution to adduce additional evidence for filling up lacuna, but the proper course is to resort to the procedure under S. 428 (1) of the Code of 1898 when additional evidence is thought necessary. I have already pointed out that S. 428 of the Code of 1898 is the same as S. 391 of the Code of 1973. Therefore, the very said ratio applies to the facts and circumstances of this case. The proper procedure to be adopted by the learned Sessions Judge was the one prescribed in 3. 391 (1) of the code of 1973. ( 6 ) IN the result, this revision petition is allowed and the order of retrial passed by the Sessions Judge, North Kanara, Karwar, in Criminal appeal No. 89 of 1976, is set a^ide. The proper procedure to be adopted by the learned Sessions Judge was the one prescribed in 3. 391 (1) of the code of 1973. ( 6 ) IN the result, this revision petition is allowed and the order of retrial passed by the Sessions Judge, North Kanara, Karwar, in Criminal appeal No. 89 of 1976, is set a^ide. The Sessions Judge is directed to follow the procedure prescribed in S. 391 (1) of the Code of 1973 and then to proceed to dispose of the appeal according to law on merits. --- *** --- .