Order : (Arvind Kumar Verma, J.) 1. This revision is directed against the impugned judgment dated 19.01.2022 passed in Criminal Appeal No. 03/2020 by the learned Additional Session Judge Patthalgaon, District Jashpur (C.G.), arising out of the order dated 17.10.2018 in Criminal Case No. 357/2012 passed by the learned Judicial Magistrate First Class Patthalgaon, District Jashpur (C.G.) whereby the applicants were prosecuted for the offences punishable under section 420, 467, 468, 471/34 of IPC registered at Police Station Patthalgaon, Distt.- Jashpur (C.G.) in connection with Crime No. 67/2012, and after trial they were acquitted from the charges after due process of trial. Thereafter, the acquittal order of the applicants was challenged by the respondent No. 1 by filling the appeal under section 378 of Cr.P.C. before the court of Session and the learned First Additional Session Judge allowed the appeal remanded the case for retrial by passing the impugned order. 2. Facts of the present case are that complainant R. P. Kripal Tahsildar made a report on 10.04.2012 against the applicants with the averment that a land of Khasra No. 564/3, 564/4, 564/5 area 0.728, 0.525 and 0.761 Hectare was granted by the Govt. to Rajendra Prasad, Sachindra and Khatibai under the Scheme of Bhudan and without permission of the Govt. with collusion of the Patwari Plasidiyus Toopo the land in question was sold so the FIR has been registered and after investigation charge-sheet is filed. 3. The learned trial court after filling of the charge-sheet framed the charges against the applicants they denied the same and claim to be tried so the learned trial court examine as many as 4 prosecution witness after appreciate the statement / evidence available on record acquitted the applicants from the above mentioned charges vide judgment dated 17.10.2018. Thereafter the respondent No. 1 State file the appeal against the acquittal under section 378 of Cr.P.C. before the ASJ. The learned ASJ allowed the appeal remanded the case for retrial by passing the impugned order and ordered for reexamination of the witnesses. 4. Thereafter the respondent No. 1 State file the appeal against the acquittal under section 378 of Cr.P.C. before the ASJ. The learned ASJ allowed the appeal remanded the case for retrial by passing the impugned order and ordered for reexamination of the witnesses. 4. Learned counsel for the applicant submits that the applicants have faced the trial as well as appeal for about 11 years and all of sudden the learned appellate court passed the impugned judgment by setting aside the trial court judgment and directed to examine the witness R. K. Kripal, Jivendra Lakda and also proved the document and passed the fresh judgment within a period of 6 months. The remand is not permissible to fill up the lacuna by the prosecution and it is settled principle of law that the benefit of doubt goes to accused but here the learned appellate court remanded the case and directed to reexamine the witness which is not permissible under the law. 5. In support of his contention, learned counsel for applicant placed reliance upon a judgment of the Supreme Court in the case of Nasib Singh Vs. State of Punjab and Another reported in 2022 (2) SCC 89 . Learned counsel for applicant also relied upon a judgment of the Supreme Court in the case of Ajay Kumar Ghoshal Vs. State of Bihar and Another reported in 2017 (12) SCC 699 . 6. Learned State Counsel submits that the judgment of acquittal declared by the trial court on 17.10.2018 is clearly erroneous as it was declared without examination the important evidence and documents available on record. It appears that the decision of acquittal of the trial court dated 17.10.2018 keeping in view of the loss of justice to the prosecution, is set aside and is sent back to the trial court with the direction that the trial court, after providing an opportunity of evidence to the prosecution applicant/witnesses and Investigation OfÏcer on their evidence and the documents submitted by them and after providing adequate opportunity of hearing to the respondent/accused, should re-register the Criminal Case No. 357/12 in the criminal register afresh for reconsideration and declare the decision again within six months on the basis of merit and demerits. 7. 7. Learned counsel for the State submits that, the impugned order passed by the judicial authorities in judicial capacity and the same are well reasoned order based on the findings and reasoning's mentioned therein, the serious sections have been imposed in the case, which is based on documentary evidence and the trial court has not got the documents marked as exhibits nor has it called for the evidence of documentary witnesses. The trial court has passed a judgment of acquittal without calling the evidence of witnesses, which is not upheld as it is against the law. The documents attached to the case will be looked into by the trial court, it has been assumed because, for the disposal of the case, the decision of acquittal has been passed without recording the statement of the applicant R.K. Kripal (the then Tehsildar) and the Investigation OfÏcer Sub Inspector Jivendra Lakra, which is not sustainable. Therefore, impugned order passed by the learned Court below, is proper, legal, and strictly in accordance with law and within the jurisdiction and there is no infirmity or illegality in the same. 8. I have learned counsel for the respective parties and perused the record and orders of the court below. 9. Factual matrix of the case are that the complainant R.P. Kripal Tahsildar made a report on 10.04.2012 against the applicants with the averment that a land of Khasra No. 564/3, 564/4, 564/5 area 0.728, 0.525 and 0.761 Hectare was granted by the Govt. to Rajendra Prasad, Sachindra and Khatibai under the Scheme of Bhudan and without permission of the Government with collusion of the Patwari Plasidiyus Toppo the land in question was sold so the FIR has been registered and after investigation charge sheet is filed. The learned court after filling of the charge sheet framed the charges against the applicants they denied the same and claim to be tried so the learned trial court examine as many as 4 prosecution witness after appreciate the statement / evidence available on record acquitted the applicants from the above mentioned charges vide judgment dated 17.10.2018. The respondent No. 2 State filed the appeal against the acquittal under Section 378 of Cr.P.C. before the ASJ. The Appellate Court passed the impugned judgment by setting aside the judgment of the trial Court and directed to examine the witnesses R.K. Kripal, Jivendra Lakda. 10. The respondent No. 2 State filed the appeal against the acquittal under Section 378 of Cr.P.C. before the ASJ. The Appellate Court passed the impugned judgment by setting aside the judgment of the trial Court and directed to examine the witnesses R.K. Kripal, Jivendra Lakda. 10. The Hon’ble Supreme Court in the case of Nasib Singh Vs. State of Punjab and Another reported in 2022 (2) SCC 89 has held in Paragraph 33 as under:- “33. The principles that emerge from the decisions of this Court on retrial can be formulated as under: (i) The Appellate Court may direct a retrial only in ‘exceptional’ circumstances to avert a miscarriage of justice; (ii) Mere lapses in the investigation are not sufficient to warrant a direction for re- trial. Only if the lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed; (iii) A determination of whether a ‘shoddy’ investigation/trial has prejudiced the party, must be based on the facts of each case pursuant to a thorough reading of the evidence; (iv) It is not sufficient if the accused/ prosecution makes a facial argument that there has been a miscarriage of justice warranting a retrial. It is incumbent on the Appellant Court directing a retrial to provide a reasoned order on the nature of the miscarriage of justice caused with reference to the evidence and investigatory process; (v) If a matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out; and (vi) The following are some instances, not intended to be exhaustive, of when the Court could order a retrial on the ground of miscarriage of justice : a) The trial court has proceeded with the trial in the absence of jurisdiction; b) The trial has been vitiated by an illegality or irregularity based on a misconception of the nature of the proceedings; and c) The prosecutor has been disabled or prevented from adducing evidence as regards the nature of the charge, resulting in the trial being rendered a farce, sham or charade.” 11. The Supreme Court also in the case of Ajay Kumar Ghoshal Vs. The Supreme Court also in the case of Ajay Kumar Ghoshal Vs. State of Bihar and Another reported in 2017 (12) SCC 699 has held in Paragraph 12 as under:- “De novo’ trial means a “new trial” ordered by an appellate court in exceptional cases when the original trial failed to make a determination in a manner dictated by law. The trial is conducted afresh by the court as if there had not been a trial in first instance. Undoubtedly, the appellate court has power to direct the lower court to hold ‘de novo’ trial. But the question is when such power should be exercised. As stated in Pandit Ukha Kolhe vs. State of Maharashtra (1964) SCR 926, the Court held that: “An order for retrial 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. 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.” 12. The appellate court hearing a criminal appeal from a judgment of conviction has power to order the retrial of the accused under Section 386 of the Code. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A ‘de novo trial’ or retrial is not the second trial; it is continuation of the same trial and same prosecution. That is clear from the bare language of Section 386(b). Though such power exists, it should not be exercised in a routine manner. A ‘de novo trial’ or retrial is not the second trial; it is continuation of the same trial and same prosecution. The guiding factor for retrial must always be demand of justice. Obviously, the exercise of power of retrial under Section 386(b) of the Code, will depend on the facts and circumstances of each case for which no strait jacket formula can be formulated but the appellate court must closely keep in view that while protecting the right of an accused to fair trial and due process, the people who seek protection of law do not lose hope in legal system and the interests of the society are not altogether overlooked. 13. From the said judgment of the Hon’ble Supreme Court, it is evidently clear that the High Court could have remanded the matter only in very exceptional case where it is found that there is a defect of procedure or a manifest error of law resulting a flagrant miscarriage of justice is taken place in the course of the trial Court deciding the case. 14. However, in the instant case, the evidence of witnesses R.K. Kripal and Jivendra Lal Lakra from side of prosecution is important and prosecution failed to produce aforesaid witnesses after giving ample opportunity by the trial Court. The prosecution also failed to prove the case by making the evidence and documents presented as exhibits before the trial Court. The trial Court in-spite of the said alleged deficiency of not examining the said witnesses, yet has reached to the conclusion that the case of the prosecution has not been proved and accused/applicants are acquitted from the charges levelled against them. 15. From the two decisions referred to herein above and the judgment referred to by the Hon’ble Supreme Court while passing these two judgments, it is evidently clear that the appellant Court could not have and does not have the power to remand the case for retrial so as to fill up the lacuna on the part of the prosecution and the trial Court, more particularly, when the judgment under challenge before the appellant Court was against the acquittal of the applicants/accused. Secondly, criminal case was filed on 10.04.2012 and after more than 6 years, the judgment of acquittal was passed on 17.10.2018, till then aforesaid witnesses has not been examined by the prosecution. 16.After analyzing all the facts, this Court finds it appropriate to set aside the impugned order dated 19.01.2022 passed in Criminal Appeal No. 03/2020 and order of the trial Court dated 17.10.2018 is restored. 17. Accordingly, present Criminal Revision is allowed 18. Let a copy of this order and the original records be transmitted to the court concerned forthwith for necessary information and compliance.