Remand

Case is remanded when a decree is reversed in appeal and a re-trial is considered necessary.

Generally, when a court fails to exercise jurisdiction vested in it and/or does not exercise jurisdiction for an incorrect reason, the case is remanded to that court for a decision on merits.

Such remand cannot be claimed as a vested right, but it is always the province of the Court or Tribunal to first figure out whether any material error or defect was committed by the Court in the order or judgment which really and adversely affected the corpus of the case and caused serious prejudice or injustice to the party requesting remand on some essential questions of law or fact which was ignored by the courts below while deciding the lis.

Such remand cannot be claimed as a vested right, but it is always the province of the Court or Tribunal to first figure out whether any material error or defect was committed by the Court in the order or judgment which really and adversely affected the corpus of the case and caused serious prejudice or injustice to the party requesting remand on some essential questions of law or fact which was ignored by the courts below while deciding the lis.

Magistrate has to examine very carefully the justification for depriving a citizen of his liberty which can only be done if material justifying such action is available on record

Deviation made by Magistrate in such respect, exposes Magistrate to the peril of having committed violations of mandatory provisions of law.

Where the evidence on record was sufficient to dispose of the case by the appellate court, the case should not be remanded.

Order remanding a matter could only be interfered with if the same was perfunctory, perverse, without jurisdiction or extremely arbitrary

Facility of a civil revision would only be available when the order directing remand was manifestly perverse/ evidently illegal.

Order of remand, as a general rule, would not be objectionable if an important/vital point in the controversy has been left unattended by the Trial Court.

In most of the cases the remand order is rather employed by the assessing officer to make the fate of assessee even worse

All previous discrepancies are meticulously taken care of so that the assessee finds no favourable factual or legal proposition to urge before the appellate forum.

Order passed under S. 122 creating liability is an assessment order for all intents and purposes and can only be dealt under Cl. (a) of S. 129(1) and binds the Commissioner (Appeals) only to confirm, modify or annul the assessment order and does not in any manner confer jurisdiction on the Commissioner (Appeals) to remand the matter to the assessing officer.

Said provision unequivocally eclipses and restricts the Commissioner's scope of power to confirm, modify or annul the assessment and the Commissioner's decision cannot go beyond the ambit of assessment.

Meaning.

Remand order is required in cases which cannot be decided on the basis of available evidence, however, where the evidence is sufficient for a decision of a case, a remand order is not required.

Trial Court acquitted the accused on the ground of non-availability of prosecution witnesses on number of dates fixed for hearing

Held; it was not a good ground to acquit the accused, but at the same time, it could not be ignored that prosecution was duty bound to produce their witnesses in time for an early disposal of the case, because the right of an accused to an expeditious and fair trial has been enshrined in the Constitution

Accused had remained in jail for at least six months, as such, he had sufficiently been punished and had also faced the agony of protracted trial for about two and half years, but decision could not be made on merits

No fruitful purpose would be served if the case was remanded to the Trial Court, which would amount to abuse of process of law and torture the parties

Remand of case, not being a routine matter, should be adopted only when compelling circumstances existed

No compelling circumstances existed to remand the case

Appeal against acquittal was disposed of accordingly.

Bare reading of S. 45B(3) of Sales Tax Act, 1990, establishes that the Commissioner Inland Revenue (Appeals) in exercise of power so vested in him has no power to remand the case

Commissioner Inland Revenue (Appeals) has no statutory backing clothing him with jurisdiction to pass order of remand and go beyond the scope of powers vested in him under S. 45B of Sales Tax Act, 1990.

Where a legal lacuna had crept into the judgment in as much as S. 395, P.P.C., provided minimum sentence of four years for a convict but the Trial Court had awarded sentence less than the minimum prescribed sentence provided under the law, the request of Prosecutor for remand of case was declined declaring the same to be not a viable option as the prosecution had failed to prove its case beyond reasonable doubt.

Subsection (3) of S.193-A of Customs Act, 1969, confirms that Collector (Appeals) can only extend, confirm, modify or annul an order challenged before him

Absence of phrase remand by the Legislature substantiates that the intent was not to grant such power.

If Court proceeds with matter and finds it fit, the Court may decide the same on merit without remanding the case to Trial Court

Remanding of case may prolong agony of parties

Purpose of O.XLI, R.24, C.P.C. is to minimize hardships of litigants and unnecessary delay in disposal of cases.

Against any such subsequent decision or judgment, alternate remedy was available to the parties.

High Court, by an earlier order had referred the matter to the Provincial Board of Revenue and pointed out two distinct issues for determination

None of the said issues were considered by the Board of Revenue

Validity

Held, order being in contravention of the reference made to Board of Revenue was set aside

High court remanded the matter to the Board of Revenue for re-hearing of the case and decision in accordance with the reference by the High Court.

Magistrate, declining application filed under S. 167, Cr.P.C. by Investigation Officer, remanded the accused to jail and directed the applicant to submit his report under S. 173, Cr.P.C. after conducting investigation

Revisional court upheld said order

Remand to the police could not be granted on the ground that presence of accused was necessary to furnish the investigation or to get forcible statement from the accused, nor could remand be granted on the whims and wishes of the complainant

Section 167, Cr.P.C. provided procedure for the Investigation Officer, where investigation was not complete within 24 hours

Present petition had been filed by the complainant, who was a private person, and the Investigation Officer had not challenged the impugned order

No mala fide and ulterior motive had been alleged against the Investigation Officer

Only the Investigation Officer could furnish application for grant of remand and assail the orders passed on such application before appropriate forum

Petitioner, in his private capacity, had no nexus with the matter and had no locus standi to file such application

Dispute between the parties appeared to be one between landlord and tenant

No perversity, illegality and incorrectness was found in the impugned order

Constitutional petition was dismissed in circumstances.

Meanings.

Importer being not satisfied with the decision of adjudicating authority preferred appeal to Collector (Appeals), who set aside the order of adjudicating authority and remanded case to adjudicating authority for finalizing the value strictly in terms of S.25 of the Customs Act, 1969

Collector appeal also remanded the matter to the Adjudicating Authority

Validity

Appellant/importer in the memo of appeal pointed out amendment in S.193-A(3) of the Customs Act, 1969 which pertained to the power of remanding the appeal to the Adjudicating Authority by Collector (Appeals) having been taken away

Appeal filed by the importer was accepted by the Tribunal and valuation with direction that of goods was to be finalized keeping in view Director General valuation's letter

Appeal was accepted, in circumstances.

Plaintiff was required to plead the detail of oral agreement to sell/transaction of sale i.e. date, place and time of agreement as well as witnesses before whom the transaction was arrived for proving an oral transaction of sale or agreement to sell as well as detail of property and payment under agreement

Plaintiff had not given the detail of property and amount received by defendant

Complete case should be before the court as well as before the other party of a person who had come for pressing his right on the basis of an oral agreement so that other party might be able to defend the same

Pleading and evidence of plaintiff were not up to mark and payment of consideration could not be determined

Plaintiff had failed to plead the agreement to sell or transaction of sale and payment of consideration amount to the defendant

No question for handing over the cheque for re-payment of amount would arise

Presumption was attached with the negotiable instrument but same was rebuttable

Cheque in question was not with regard to the re-payment of amount received by the defendant

Signatures upon the cheque did not mean the issuance of cheque

Litigation between the parties was on record before filing the present suit

Presumption attached with the cheque had validly been rebutted by the defendant

False suit had been filed against the defendant who would be at liberty to press for damages in the litigation

Impugned judgment and decree passed by the Trial Court were set aside with cost throughout

Appeal was accepted in circumstances.

When matter can be decided on the basis of available record, it is not proper to remand the matter to lower forum as it would also be an exercise in futility in addition to being a source of inconvenience and hardship for litigants.

First Appellate Authority if had remanded the issue back to the assessing authority to examine if the reversal was being made out of disallowed provision for diminution in value of investment, then the reversal should be allowed as provision as already taxed

Taxpayer contended that in view of clear findings of assessing authority to the effect that contention of taxpayer was as per law i.e. the amount was disallowed as provision and had now been claimed as reversal there was no need to remand the matter to assessing authority

Validity

In presence of admission of assessing authority in his order that amount was earlier disallowed as provision there was no need to remand the matter to assessing authority.

In case of remand the parties would suffer mental and physical torture and would increase their agony.

Where such isuses could be decided on basis of evidence available on record, then remand of case to lower court for its decision would not be justified.

Circumstances/criteria under which appellate/revisional court can remand a case enumerated.

State case had been decided by Trial Court culminating into an appeal pending in High Court against the convictions and sentences of accused

Trial against the complainant party of the present case in the private complaint filed by the accused, was in progress in the Court of Magistrate

Both sides had been presenting their respective case and cause in two different Courts

Any observation or finding by High Court in appeal at this stage would certainly adversely affect the case and cause of either side pending adjudication before the Magistrate

State case and the private complaint case by the appellants containing their defence version, should have been tried side by side and decided by one Court on one date to avoid conflicting judgments

Convictions and sentences of accused were set aside in circumstances and the case was remanded to Sessions Court for rewriting of judgment

Private complaint case between the parties was withdrawn from the Court of Magistrate and made over to the said Sessions Court for its disposal in accordance with law along with the State case, which stood remanded in the above terms

Appeal was accepted accordingly.

Grant or refusal of physical custody of an accused to police must be with judicious application of independent mind.

Court or authority trying the lis, has to regulate proceedings and proceed with the matter, according to order of remand, passed by High Court/higher forum

Any attempt to sidetrack issue or decision in a manner, not directed by High Court, would be defiance of remand order

Where the lower Authority had ignored the terms of remand orders passed by High Court, such order passed by the Authority being erroneous, was not sustainable in the eyes of law.

Case cannot be remanded either for the resolution of legal issues or on technical ground.

No person can be detained for the purpose of investigation/inquiry for a period exceeding ninety days and for every remand, reasons have to be recorded.

Tribunal upholding jurisdiction of Income-tax Officer to reopen assessment under S.147(b) and restoring matter to First Appellate Authority

Order of the Tribunal regarding reopening of assessment had became final as assessee did not take up matter to High Court

Question of validity of jurisdiction assumed by I.T.O. under S.147(b) on restoration of appeal to A.A.C. could not be challenged

Indian Income Tax Act, 1961, S.147(b).

Remand would imply return of the case to the same Court where the order assailed in appeal was passed or to a lower forum where the case could be heard and the substantial issues adjudicated on trial/hearing.

Cause becomes wide open to entertain relevant grievances germane to final adjudication of real controversy.

Claim of plaintiff in the suit being fraudulent which was apparent from the record, Supreme Court declined to remand the case for the proceedings which would have been sheer wastage of time and merely an exercise in futility.

Held, there being no basis for remand of case, it could not be ordered for a mere fun to appease one party to litigation.

Remand Remand order could not be passed just for sake of passing an order and could not be allowed to stand merely because according to one party same would not cause any harm

Where all the necessary questions of fact were either admitted, proved or finally determined, remand order in question, was an exercise in futility which could adversely affect petitioner and was thus, not maintainable.

Trial Court who took cognizance for the second time is expected to apply its mind irrespective of what had happened before.

Authority subordinate to the Authority remanding the case has no option but to comply with the directions of Authority contained in remand order-Refusal to act on directions of Authority

Besides any disciplinary action, that might be taken in the matter, order passed by subordinate Authority in disregard of such directions could not be considered as an order passed in compliance of remand order

Disregard of remand order could not have effect of terminating the proceedings.

Where the important point of limitation, specifically raised in the High Court, had not been decided, remand of the case to the High Court to decide the issue was proper.

Relevant factors to be weighed for remand stated.

Decision against appellant by District Judge was assailed before High Court on the grounds that suit land did hot fall within the area of survey number Which was under the ownership of the respondent but fell within the area of another survey number and in the event it fell within the survey number which was owned by the respondent appellant's adverse possession had matured into title

High Court omitted to decide question of adverse possession thus failed to apply its mind to the matter of the case and did not decide a most important point

Disregard to the provision of law or inadvertent omission had not only wasted valuable time of the parties but had, also caused unnecessary expense and trouble to them

Case was remanded to the High Court in circumstances.

Factors to be kept in view while remanding the case.

Leave to appeal granted to consider contention that High Court was not right in setting aside order of dismissal because provisions of law to attach copy of decree with memorandum of appear could not be dispensed with

Appeal ordered to be heard on existing record at an early date.

Controversy coming to notice of Board of Revenue being substantially between same parties and relating to same matter which the Member, Board of Revenue had decided in a different and subordinate capacity, such participation or involvement clearly disqualified him from acting as a Judge in the same matter which he had already decided

Fact that the Member dealt with the question of law alone and not of fact could not sufficiently excuse him and protect his adjudication

Legal points on which remand was ordered by Member, Board of Revenue were with regard to non-framing of issues and for examining the question of limitation-

Plea that it could have been decided by High Court on evidence available on record, repelled, as period of alleged default was not mentioned in ejectment application

Leave to appeal refused.