Dalip K. Kapur, J.
1. The petitioners before this Court have been convicted for an offence under Section 448 I. P. C. They were sentenced to a fine of Rs. 1,000/- each and in default of paying the fine were to undergo R.I. for two months; they were also ordered to restore possession of the disputed room to the complainant. In view of the points involved in this revision petition it is unnecessary to give details of the offence because this revision is not concerned with the merits of the conviction.
2. The conviction of the petitioners was recorded by Shri R.N. Jindal, Metropolitan Magistrate, Delhi on 30-7-1976 and the petitioners thereafter appealed to Shri Mahesh Chandra, 13th Additional Sessions Judge Delhi who did not decide the appeal on merits but directed the remand of the case back to the magistrate on the view that the learned Magistrate had not granted the petitioners the benefit of Section 3 of the Probation of Offenders Act and furthermore had not in- dependently heard the accused on the question of sentence. The learned Additional Sessions Judges was of the view that Section 235 (2) was in pari materia with Section 248 (2) which as interpreted by the Supreme Court required the court to give a further opportunity to the accused to address arguments on the question of sentence. The Court, thereforee, came to the conclusion that the sentence had not been passed in accordance with law. Accordingly, the Additional Sessions Judge remanded the case back to the Magistrate for recording sentence in accordance with law.
3. The provisions of the Code of Criminal Procedure, 1973 have been interpreted to the effect that the magistrate has first to record a conviction and has then to hear the accused on the question of sentence. If the trial in the present case was under the new Code the decision of the Additional Sessions Judge would not have been wrong. However, the trial before the magistrate commenced in 1969 long before the new Code was enacted. It is provided in Section 484 (2) that in spite of the repeal of the old Code trials which are already pending will be in accordance with the old Code notwithstanding its repeal. The proviso specifically says that in respect of Sessions Trials the new Code will be made applicable. thereforee, clearly the magistrate was in error in coming to the conclusion that the new Code had to be applied even to cases pending under the old Code.
4. There is also a second and even more important objection to the decision of the Additional Sessions Judge. It is submitted that there is no power to remand the case back to the magistrate. In this respect, reference is necessary to the powers of the appellate court set out in Section 386 of the present Code. It is there stated that the powers of the court are to dismiss the appeal or in an appeal from conviction the court may:-
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial or
(ii) alter the finding, maintaining the sentence', or
(iii) 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;' It can at once be seen that there is no power of remand except for the purpose of a re-trial. No other section of the Code allows a remand for the purpose of hearing the accused on the question of sentence. thereforee, it can well be said that the order of the Additional Sessions Judge is not in accordance with law.
5. For reference, as the order of the Additional Sessions Judge is an unusual one, it may be useful to state that remand orders have, on at least two occasions, been held to be illegal. One of these cases is an unreported judgment of the Calcutta High Court referred to in (1907) 11 C WN at p. ccliv of the Notes. The observations of the Court were to the effect that the remand which directed the District Judge to pass a sentence in accordance with law was not legal. Similarly, in another case 'Tara Chand Singh v. Emperor (1905) 32 Cal 1069 : 3 Cri LJ 119 a remand by a Sessions Judge to the magistrate to write out a proper judgment after rehearing the parties was held to be without authority. These two judgments show that the Additional Sessions Judge had similarly no power to remand the case back to the magistrate to record a sentence in accordance with law.
6. The powers of the appellate court are circumscribed by the provisions of the Cr.P.C. even if the magistrate had not proceeded in accordance with law, which in this case is doubtful, because the magistrate was trying this case under the Cr.P.C. of 1898 and not the new Code, the Sessions Court had to decide the appeal and could either decide the same or he could have sent the case back for retrial. Thus, the decision of the Additional Sessions Judge sought to be revised has to be set aside. This brings me to the question as to what are the powers of this Court. If the Sessions Court could not remand the case back to the magistrate it may well be asked whether this Court can remand the case back to the Additional Sessions Judge. The powers of the revisional court are set out in Sees. 397 and 401 of the new Cr.P.C. No power of remand can be made out from either of these Sections. However, in the two cases I have just referred to, the Calcutta High Court did remand the case back to the Sessions Judge. I asked the learned Counsel for the State as well as the petitioners as to how this Court could remand the case back to the Sessions Judge when the decisions in this case was to the effect that the Sessions Judge had no power to remand the case back. On examining the legal position they submitted that this Court had inherent power to give effect to the conclusions recorded in this judgment and hence under Section 482 of the Code the proceedings could be remanded back to the Additional Sessions Judge. I am in agreement with this submission.
7. In the result, this revision succeeds. The Judgment of the 13th Additional Sessions Judge is set aside and the case is remanded back to him for deciding the appeal in accordance with law.