ORDER : 1. In this Criminal Revision Petition filed by three (3) convicts, they seek to set aside the judgment of the learned first appellate Court by exercising powers under Section 397 and 401 Cr.P.C. Respondent herein is the State on whose prosecution these revision petitioners were earlier convicted by the learned trial Court. 2. The facts leading to the presentation of present revision are to be noticed. Crime No. 50 of 2009 of Chennur police station was investigated into by the Sub Inspector of Police and on collection of evidence and conclusion of investigation a charge sheet was filed before learned First Additional Judicial Magistrate of First Class, Kadapa for the offences under Sections 324 r/w. 34 IPC and Section 188 IPC. After taking cognizance of offence and securing the presence of accused and having furnished copies of documents and after hearing counsel on both sides the learned trial Court framed a charge under Section 324 IPC as against A2 and A3 and a charge under Section 324 r/w. 34 IPC against A1. The accused denied the facts and pleaded not guilty. Further trial ensued where prosecution examined PWs. 1 to 8 and got marked Exs.P1 to P6 and also exhibited one of the crime weapons/MO.1 stick. The incriminating material available on record was explained to the accused under section 313 Cr.P.C. wherein the accused denied the truth of the evidence. Accused did not adduce any evidence. After hearing arguments on both sides and after thorough scrutiny of evidence on record, learned trial Court found A1 to A3 guilty for the charges framed against them and convicted them and sentenced them to undergo simple imprisonment for six months and further directed each one of them to pay fine of Rs. 1,000/- prescribing default sentence to undergo simple imprisonment for one month. Before the learned trial Court, it was a case of one victim and three accused. They belong to different political parties and the alleged offence occurred on 23.04.2009 which was the day for general elections for Parliament as well as State Assembly. The allegations are that all the three accused noticed the victim/PW-1 at 2.30 PM at Old bank street, Chennur of Kadapa District and thus accused reached the victim and attacked him. They belong to different political parties and the alleged offence occurred on 23.04.2009 which was the day for general elections for Parliament as well as State Assembly. The allegations are that all the three accused noticed the victim/PW-1 at 2.30 PM at Old bank street, Chennur of Kadapa District and thus accused reached the victim and attacked him. A1 caught hold the neck of the victim and dragged him and A2 using MO.1 stick caused injury on the head and A3 using a stone caused injury on the back of the victim. The evidence of victim/PW-1 and that of his friend, who was by his side and witnessed the incident, gave evidence as PW-2 and the earlier statement of PW-1 given to police as per Ex.P1 were found consistent by the trial Court. In addition to that there was the evidence of PWs. 3, 4 and 5 which also stood as full support for the version of the prosecution. The victim was examined by medical expert and his wound certificate was there on record and was exhibited as a document while examining the investigation officer/PW-8. It seems the medical doctor who examined the victim did not testify before the Court and prosecution gave up his evidence. It was in that context of facts defence raised a contention before the learned trial Court about proof of contents of the wound certificate/Ex.P6. Learned trial Court by furnishing its own reasons observed that from the rest of the evidence it was able to reach to the conclusion about simple hurt suffered by PW-1 in the hands of accused and therefore it felt that non-examination of doctor did not affect the case of the prosecution. Acting upon such evidence the learned trial Court found the accused guilty and convicted them and sentenced them accordingly. 3. Challenging that judgment all the three convicts preferred Criminal Appeal No. 124 of 2010 and First Additional Sessions Judge, Kadapa after due hearing, by his judgment dated 24.01.2012 felt that the wound certificate of the victim was not proved in accordance with law and it gave its reasons at Para 12, 13 and 14 of its judgment and held that, that technical lapse should not result in acquittal of culprits. Therefore, in its view a fresh opportunity be given to the prosecution to prove the wound certificate for proper appreciation of evidence. Therefore, in its view a fresh opportunity be given to the prosecution to prove the wound certificate for proper appreciation of evidence. It was in that view of the matter learned first appellate Court passed the following Order: “In the result, the appeal shall be allowed setting aside the judgment of conviction and sentence order dated 10.12.2010 in C.C. No. 109 of 2009 on the file of the First Additional Judicial Magistrate of First Class, Kadapa, and that the case in C.C. No. 109 of 2009 on the file of the First Additional Judicial Magistrate of First Class, Kadapa shall be remanded back to the trial Court with a direction for giving opportunity to the prosecution to prove the contents of wound certificate for the injuries on PW-1, which is marked as Ex.P3 in the deposition of PW-8 and as Ex.P6 as per the endorsement on the document and render its judgment without prejudice in respect of the observations in the earlier judgment as well as in this appeal.” 4. Aggrieved by that Order of remand the convicts preferred this Criminal Revision stating that for the lapses of prosecution in proving its case in the manner known to law these revision petitioners cannot be subjected to a remand for re-trial. In the absence of any improper trial, remanding the matter is incorrect and un-known to law. The learned first appellate Court ought to have acquitted these revision petitioners and it committed an error in remanding the case and therefore prayed this Court to set-aside the judgment of the first appellate Court. 5. Learned Senior Counsel Sri P. Veera Reddy argued for revision petitioners and submit that as against an appeal against conviction it is Section 386 Cr.P.C. that provides principles for the first appellate Court and Section 386(b) empowers the first appellate Court to reverse the finding and sentence and acquit or discharge the accused. The other alternative provided by the provision is for retrial by the Court of competent jurisdiction. Learned counsel would submit that the Court which tried the case was the Court of competent jurisdiction and therefore there is no jurisdictional error warranting remand of the matter for retrial. Learned senior counsel further argued that the judgment of the learned first appellate Court does not indicate the provision under which it remanded the case to the trial Court. Learned counsel would submit that the Court which tried the case was the Court of competent jurisdiction and therefore there is no jurisdictional error warranting remand of the matter for retrial. Learned senior counsel further argued that the judgment of the learned first appellate Court does not indicate the provision under which it remanded the case to the trial Court. A validly argued defence contention cannot be used for remanding a case. While the statute specifies a provision for retrial the Order passed by the first appellate Court speaks about recording of further evidence with reference to wound certificate alone and not retrial and thus there was clear irregular or illegal exercise of power by the learned first appellate Court. 6. Learned Special Assistant Public Prosecutor appearing for respondent submits that it was on a well considered judgment of conviction of the trial Court the matter was heard by the learned first appellate Court and the wound certificate was already on record and examining a witness would in no way cause prejudice to the defence and in that view of the matter there is no need to exercise revisional powers by this Court. 7. The point that falls for consideration is: Whether the Order passed by the learned first appellate Court is sustainable under law? 8. POINT: The material on record admit the following aspects and they remain undisputed. It was for the offence under Section 324 IPC trial was held before the learned Magistrate. Since the punishment provided extend up to three years, it was a warrant triable case in terms of Section (2) (x) Cr.P.C. and accordingly the learned Magistrate followed the procedure provided under Chapter XIX of Code of Criminal Procedure and tried the case accordingly. All the principles of fair trial were followed and the accused were defended by their own learned counsel. Neither the prosecution nor accused ever contended about any errors in the trial procedure or violation of any principles of natural justice. They never contended about any other fundamental lapses that would vitiate the trial. Thus, the competent Court in a duly conducted trial rendered its judgment of conviction. It was that judgment of conviction that went in appeal to learned first appellate Court. Before the learned first appellate Court the strong contention raised by the convicts was about absence of any legal proof of injuries on PW-1/victim. Thus, the competent Court in a duly conducted trial rendered its judgment of conviction. It was that judgment of conviction that went in appeal to learned first appellate Court. Before the learned first appellate Court the strong contention raised by the convicts was about absence of any legal proof of injuries on PW-1/victim. During the course of trial as well as during the course of first appeal the accused seriously contested the very existence of injuries on PW-1 on the ground that the victim was allegedly treated in a hospital where his own close relative was a doctor through whom he procured a false and fabricated wound certificate. When that being the contention, the doctor who issued the wound certificate was expected to be examined before the trial Court. Prosecution gave up his evidence. Learned trial Court recorded that the doctor left the hospital and therefore prosecution gave up his evidence. However, it went on to accept the proof of injuries on victim based on other available evidence. If the learned first appellate Court finds that some additional evidence was required, it should have exercised the powers vested with it under Section 391 Cr.P.C. If that power was to be exercised, it holds on the appeal and the judgment of the trial Court remains preserved and after securing additional evidence either by itself or through the trial Court, it could dispose of the appeal in accordance with law. It did not adopt that course. Instead, it set aside the judgment of the learned Magistrate and sent back the case to the trial Court by way of remand without mentioning the statutory provision under which it was doing so. Section 386(b) of Code of Criminal Procedure provides for remand for retrial and not for mere recording of some evidence. What the learned first appellate Court did was, it mixed up the two different principles of law and it set aside the entire judgment of the trial Court and sent back the case by way of remand only for recording additional evidence. The consequence of this is that now there is no judgment of the learned trial Court and there is no judgment of the first appellate Court on facts and law. Such Order is unsupportable especially since the material before the learned first appellate Court did not warrant remanding of the case. 9. Hon’ble Supreme Court of India in Mohd. The consequence of this is that now there is no judgment of the learned trial Court and there is no judgment of the first appellate Court on facts and law. Such Order is unsupportable especially since the material before the learned first appellate Court did not warrant remanding of the case. 9. Hon’ble Supreme Court of India in Mohd. Hussain @ Julfikar Ali vs. The State (Govt. of NCT) Delhi, (2012) 9 SCC 408 held that the power under Section 386(b) Cr.P.C. should not be exercised in a routine manner. A de novo trial or retrial of the accused should be ordered in exceptional and rare cases and only when in the opinion of the appellate court such course becomes indispensable to avert failure of justice. Their Lordships emphasized and stated that such power cannot be used to allow the prosecution to improve upon its case or fill up the lacuna. The guiding factor for retrial must always be demand of justice. Courts must closely keep in view that the people who seek protection of law do not lose hope in legal system. 10. Looking at the facts available on record and the impugned Order of the learned first appellate Court and in the context of the legal principles contained in Section 386(b) and Section 391 Cr.P.C. and the ratio of the judgment of the Hon’ble Supreme Court of India referred earlier, this Court finds that both on facts and law the Order impugned here cannot be supported as it is against the statute and the intendment of law and therefore it is liable to be set aside. Hence point is answered in favour of the revision petitioner. 11. In the result, the Criminal Revision Case is allowed and the Order of the First Additional Sessions Judge, Kadapa in Criminal Appeal No. 124 of 2010 dated 24.01.2012 is set aside. Criminal appeal is restored and the learned first appellate Court shall hear the appeal afresh and dispose it of in accordance with law as expeditiously as possible. 12. As a sequel, miscellaneous applications pending, if any, shall stand closed.