Appellate courts cannot exercise suo motu powers to remand criminal cases to fill prosecution lacunae.

The applicants were convicted by the JMFC, Vansada, on 18.02.2009 for offences under Sections 3 and 7 of the Essential Commodities Act, 1955, and sentenced to one year of rigorous imprisonment.

The prosecution alleged that Applicant No. 2, a kerosene licensee, had unauthorizedly transferred his business to Applicant No. 1 and committed various irregularities.

Upon appeal, the 2nd Additional Sessions Judge, Vansada, vide order dated 15.07.2013, remanded the matter to the trial Court with directions to allow the prosecution to lead additional evidence and produce the relevant Control Order, which was missing from the original record.

The applicants challenged this remand order via the present revision application, arguing it was a suo motu act by the appellate court to fill prosecution lacunae.

1. Whether the lower appellate court erred in exercising suo motu powers to remand the matter for additional evidence without a formal application by the prosecution.

2. Whether the appellate court can order a remand to allow the prosecution to fill up evidentiary gaps/lacunae in its case.

Section 391 of the CrPC regarding the appellate court's power to take further evidence or direct it to be taken, and the equivalent provision under Section 432 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.

While appellate courts have the power to remand or allow additional evidence, such power should not be exercised suo motu to assist the prosecution in filling gaps in its foundational evidence (such as the Control Order) that led to a conviction in the first place.

The High Court found that the Sessions Court committed a legal error by passing a suo motu remand order without any request or application from the State.

If the prosecution had failed to lead sufficient evidence—specifically the "Control Order" which is vital for proving a violation of Section 3 of the Essential Commodities Act—the appellate court should have examined the merits of the conviction based on the existing record.

Directing the trial court to produce additional material and re-decide the case essentially allowed the prosecution to remedy its own negligence, causing prejudice to the accused.

Parties remain free to seek additional evidence through the proper legal channel of a formal application under Section 391 CrPC.

The High Court partly allowed the revision application and quashed the remand order dated 15.07.2013; the matter was remanded back to the Sessions Court with directions to decide Criminal Appeal No. 09 of 2009 independently on its own merits within six months.