Judgment :- 1. In the revision petition objection is taken to the decision of the Sessions Court of Trivandrum remitting a case for fresh trial and disposal according to law setting aside the judgment convicting and sentencing the accused. It is the accused who has challenged the order of the Sessions Judge. That is because, according to him, the learned Sessions Judge had no right to direct that further evidence be taken by the trial Magistrate. In as much as he is said to have exercised a power not vested in him by law, the order of the Sessions Judge is said to be vitiated calling for interference in revision. Pursuant to the directions of the Sessions Judge the trial Magistrate commenced proceedings to take further evidence at which stage the accused objected to such a course. The learned Magistrate was of the view that since he is bound by the order of remand, irrespective of any question of the propriety or otherwise of taking such evidence, he was obliged to do so. That order of the Magistrate is challenged in the petition under S 482 of the Code of Criminal Procedure, in Criminal M. P. No. 1096 of 1977. 2. The accused in the case was charged with offences punishable under Ss.467, 471 and 472 of the Indian Penal Code. He was found guilty of offences punishable under S.467 and 471 19C. He was convicted and sentenced under those sections. According to the learned Sessions Judge the best evidence that could be adduced was not before the court, such best evidence being the opinion of the hand-writing expert and therefore the learned Sessions Judge gave opportunity for the prosecution to adduce such evidence It is the legality and propriety of the course adopted by the Sessions Court that is in controversy here. 3. The Sessions Judge was hearing the appeal by the accused. S.386 of the Code of Criminal Procedure defines the powers of the Appellate Court. In an appeal from conviction the appellate court has power to dismiss the appeal or to reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a court of competent jurisdiction subordinate to such appellate court or to commit him for trial. In an appeal from conviction the appellate court has power to dismiss the appeal or to reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a court of competent jurisdiction subordinate to such appellate court or to commit him for trial. Besides this he has power to alter the finding maintaining the sentence or with or without altering the finding alter the nature or the extent, or the nature and extent, of the sentence but not so as to enhance the same. Thus while in an appeal from a conviction the finding or sentence may be altered in favour of the accused the only decision that may be taken against the accused are: (i) dismissal of the appeal, (ii) order of retrial by a court of competent jurisdiction, or (iii) order that the accused be committed for trial. S. 391 empowers the appellate court to take further evidence or direct such evidence be taken, under certain circumstances. That section reads thus: "391. Appellate court may take further evidence or direct it to be taken. (1) Ia 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 by 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 Sessions 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) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of chapter XXIII, as if it were an inquiry." The section enables further evidence to be taken by the appellate court or by a Magistrate court and in the case of a High Court by the Sessions Court or a Magistrate. In case the evidence is not taken by the appellate court the court which has to take evidence has only to certify such evidence to the appellate court and the disposal of the appeal based on such evidence also is by the appellate court. In case the evidence is not taken by the appellate court the court which has to take evidence has only to certify such evidence to the appellate court and the disposal of the appeal based on such evidence also is by the appellate court. What is contemplated under S.391 is not a remand to the Magistrate (in the case of High Court to the Sessions Court or to the Magistrate) for the purpose of fresh disposal after taking evidence. S.391 obliges the appellate court to consider the evidence so taken irrespective of the court which took such additional evidence. Therefore in exercise of the power under S.391 the appellate court cannot direct the trial court to dispose of the case after taking fresh evidence even assuming it is dissatisfied with the evidence on record and finds that in the interest of justice fresh evidence must be allowed to be adduced. Such a procedure would not be warranted by S.386 of the Code in the case of an appeal against the conviction. Hence the learned Sessions Judge would be in error in directing the trial Magistrate to take fresh evidence and to dispose of the case after taking such evidence. That is what has been done. The view that I have expressed here is in agreement with the views expressed by my learned Brothers Khalid J. in Crl. R. P. 371 of 1975 and Kader J. in Cr. R.P. 54 of 1977. 4. The circumstances of the case necessitate setting aside of the judgment of the learned Sessions Judge, with direction to him to dispose of the case in accordance with law. It may be necessary to point out here that the power under S.391 of the Code of Criminal Procedure to take additional evidence is not without restrictions. It is not an unlimited power. It is a power conferred on the appellate court to be exercised in the interests of justice. It is necessary that such power should be conferred on the appellate authority lest it may feel helpless in situations where, in the cause of justice, fresh evidence may have to be adduced, but such conferment of power calls for restraint in its exercise. That is indicated in the section itself by the words "if it thinks additional evidence is necessary" and the words "shall record its reasons". That is indicated in the section itself by the words "if it thinks additional evidence is necessary" and the words "shall record its reasons". The court need not necessarily find that without the additional evidence on record the case could not be disposed of is order to enable it to permit fresh evidence to be adduced. The court is to exercise a proper discretion in deciding whether in a case before it the prosecution or the defence should be permitted to let in further evidence in the case. It will not be possible to lay down any rule or set out any formula as to the circumstances under which it would be permissible to allow such additional evidence to be let in in any case. Ultimately that must be left to the sound judicial sense of the court itself. Only broad guidelines can be indicated. Where the prosecution was deliberately in default in adducing relevant evidence which ought to have been brought into the case at the appropriate time the prosecution, will not, normally, be permitted to fill up the lacuna in the evidence at a later stage. If the request by the prosecution to permit it to adduce fresh evidence is not honest but is the result of after-thougnt the court would be hesitant in considering the case of the prosecution favourably. An important consideration would be the extent of material and substantial prejudice that would be caused to the parties by any additional evidence being brought in at a late stage. If the position of the parties would be irreversible by reason of such evidence being permitted to be adduced the prejudice would certainly be substantial. The question is not the absence of power in the court but one of application of the judicial mind to the ultimate object of securing justice to the parties before it. T am mentioning this because certain observations have been made in the judgment of the court below as to the reason why it was directing afresh evidence to be adduced. The court below will do well to bear in mind what has been said here as to the scope of its power under S.391 of the Code of Criminal Procedure in the matter of permitting fresh evidence to be adduced in accordance with law. The revision petition is allowed as above. The court below will do well to bear in mind what has been said here as to the scope of its power under S.391 of the Code of Criminal Procedure in the matter of permitting fresh evidence to be adduced in accordance with law. The revision petition is allowed as above. The case will go back to the learned Sessions Judge for disposal is accordance with law. In the view I have taken on the revision it naturally follows that the proceedings before the learned Magistrate for taking fresh evidence will stand closed. Hence no question of quashing the order of the Magistrate arises. Allowed.