IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Rev. No. 229 of 2009 Date of Decision: 01.4.2009 Gurmeet Singh .....Petitioner Vs. State of U.T. Chandigarh ....Respondent .... CORAM : HON'BLE MR.JUSTICE RAJIVE BHALLA **** Present : Mr. K.S. Dadwal, Advocate for the petitioner. .... RAJIVE BHALLA, J The petitioner, lays challenge to a judgement dated 13.10.2008 passed by the Additional Sessions Judge, Chandigarh, setting aside the conviction and sentence awarded to the petitioner, but remitting the case to the Additional Chief Judicial Magistrate, Chandigarh, for proceeding with the trial from the stage under Section313 of the Code of Criminal Procedure (hereinafter referred to as `the Code'). Counsel for the petitioner submits that as the Additional Sessions Judge, Chandigarh, has held that the Magistrate was remiss in recording the statement under Section 313 of the Code, it had no jurisdiction to remit the matter and should, therefore, have acquitted the petitioner. It is argued that the Code does not contain any provision that would entitle a court to re-record the statement under Section 313 of the Code as the fundamental principle that governs a criminal trial is that if relevant material is not put to the accused, the trial must end in his acquittal. For the aforementioned argument, reliance is placed upon Ashraf Ali V. State of Assam, 2008 (3) RCR (Crl.) 835, Lallu Manjhi and another V. State of Jharkhand, 2003 (1) RCR (Crl.) 566, Vikramjit Singh @ Vicky V. State of Punjab, (2007) 1 S.C.C. (Crl.)732. It is further submitted that the FIR was registered in the year 1988. The petitioner was convicted in the year 1999 and now the trial would commence from the stage of recording statement under Section 313 of the Code in the year 2009. The petitioner has faced prosecution since the year 1988. The Additional Sessions Judge, Chandigarh, should have taken these facts into consideration and acquitted the petitioner. I have heard learned counsel for the petitioner, perused the impugned judgement as also the precedents pressed into service by counsel for the petitioner and express my inability to accept the arguments raised by counsel for the petitioner. It is true that evidence led against an accused, is not put to him during proceedings under Section 313 of the Code, an accused may validly urge that these facts cannot be used against him. It is a settled position in law that an appellate court considering such an argument has the jurisdictional discretion to either acquit or discharge the accused or remit the matter to the trial court for proceeding with the trial from the stage of recording statements under Section 313 of the Code. The argument that the Code does not permit re-recording of statements under Section 313 of the Code, disregards the power of an appellate court to remit the matter for re-trial in exercise of its powers under Section 386 of the Code. The word re-trial does not necessarily mean a de-novo or fresh trial. The precedents referred to by counsel for the petitioner are in no way inconsistent with the view adopted by the appellate court, as the discretion to acquit an accused or to remit the case for defects while recording the statement under Section 313 of the Code vests with the appellate court. The appellate court has on due consideration remitted the matter to the trial court for proceeding with the trial afresh from the stage of recording the statement under Section 313 of the Code. The petitioner has undoubtedly faced prosecution since 1988. Delay alone would not be suffice to accept the arguments raised by counsel for the petitioner and order his acquittal. Dismissed. 01.4.2009 ( RAJIVE BHALLA ) GS JUDGE