Crl.R.No.2320 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.R.No.2320 of 2010 (O&M) Date of Decision: September 8, 2010 Gurcharan Singh .....Petitioner v. State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr.Gautam Dutt, Advocate for the petitioner. .... RAM CHAND GUPTA, J.(Oral) The present revision petition has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure (for short`Cr.P.C.') against order dated 14.7.2010, passed by learned Additional Sessions Judge, Ferozepur, in an appeal against judgment of conviction and order of sentence dated 16.5.2003, passed by Additional Chief Judicial Magistrate, Ferozepur, in FIR No.448, dated 17.6.1990, under Section 409 IPC, Police Station Sadar, Ferozepur, vide which the judgment of conviction and order of sentence passed by learned trial Court was set aside, however, the case was remanded back to trial Court to decide afresh after recording statement of accused under Section 313 Cr.P.C., as per law. It was made clear that the trial Court would proceed with the trial from the stage of recording of statement of accused under section 313 Cr.P.C., as the evidence of prosecution had already been concluded. I have heard learned counsel for the revision-petitioner and have gone through the impugned order passed by learned Additional Sessions Judge, Ferozepur. Briefly stated, the case of prosecution is that District Manager, Punsup, Ferozepur, vide his letter Ex.PW11/K requested the police to register a case against accused-Gurcharan Singh, Inspector, Punsup, for having misappropriated/embezzled wheat stocks belonging to Punsup valuing Rs.40,86,422.36 p. and the other stock articles of the value of Crl.R.No.2320 of 2010 (O&M) -2- Rs.4,02,921.52 p. on the allegation that he alongwith Hans Raj, Inspector, purchased wheat stock for the year 1986-87. There are also allegations that he was given charge of wheat stock of the years 1983-84, 1984-85, 1985-86 and 1986-87. He was made Incharge of Punsup Centre, Ferozepur Cantt. in place of Hans Raj, Inspector and Inspector Hans Raj was transferred to Circle Office, Punsup, Ferozepur and accused Gurcharan Singh was directed to take charge alongwith Joginder Singh, Sub Inspector. He had taken the charge of wheat stock from Inspector Hans Raj. Physical verification of the wheat stock under the charge of accused-Gurcharan Singh was conducted by Om Parkash Sharma, Field Officer, VK Bhambri and Field Officer Ajit Singh and after verification, the charge was taken by the petitioner-accused alongwith Sub Inspector Joginder Singh. The matter was enquired into by a Committee and the enquiry was also conducted by audit section of Punsup and it was found that there was shortage in two godowns of wheat stock. Learned trial court framed charge under Section 408 IPC against petitioner-accused and after completion of evidence of prosecution and after recording of statement of accused under Section 313 Cr.P.C. and defence evidence of accused, he was convicted and sentenced for offence under Section 409 IPC. Learned appellate Court observed that learned trial Court could not convict the present petitioner for offence under Section 409 IPC when charge was framed under Section 408 IPC. It has further been observed that statement recorded under Section 313 Cr.P.C. by learned trial Court is a scatchy one and that evidence of prosecution was not put to the accused, in detail. It has been observed that all the documents having been mentioned in statement under Section 313 Cr.P.C. are without any detail thereof and without putting the evidence led by prosecution, which was incriminating in nature against the accused. Hence, learned appellate court while setting aside the conviction and order of sentence passed against the accused remanded the case to the trial Court to decide afresh, after recording statement of accused under Section 313 Cr.P.C., as per law. It has been contended by learned counsel for the petitioner- accused that a serious prejudice has been caused to the petitioner on account of the impugned order passed by learned appellate Court remanding the Crl.R.No.2320 of 2010 (O&M) -3- case and directing recording of the statement of accused under Section 313 Cr.P.C., as per law afresh and that rather learned appellate court should have acquitted the petitioner-accused on account of non-compliance of mandatory provisions of law. Section 386 Cr.P.C. deals with power of the appellate Court, which reads as under:- “386. Powers of the appellate Court.-After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) In an appeal from a conviction- (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; (c) In an appeal for enhancement of sentence- (i) Reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a court competent to try the offence,- or (ii) Alter the finding maintaining the sentence, or (iii) With or without altering the finding, after the nature or the extent, or the nature and extent, of the sentence, Crl.R.No.2320 of 2010 (O&M) -4- so as to enhance or reduce the same; (d) In an appeal from any other order, alter or reverse such order; (e) Make any amendment or any consequential or incidental order that may be just or proper. Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence, which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.” Hence, as per sub Clause (b)(i) of Section 386 Cr.P.C., appellate Court is having power to order for retrial of the case by a Court of competent jurisdiction subordinate to such appellate Court. The point as to whether the appellate Court is having power to remand the case for re-trial to trial Court in case statement of accused was not recorded in legal manner was settled by Full Bench of this Court in Dara Singh and another v. The State AIR 1952 P&H 214, operative part of which reads as under:- “23. I may now briefly sum up my conclusions. My answer to the question proposed is that it is within the powers of the High Court to examine and further examine the convicts and that the law does not place any restrictions upon this power. But if the High Court is of the opinion whether before or after examining the convicts that non-compliance with the provisions of Section 342, Criminal Procedure Code, has occasioned or is likely to have occasioned prejudice to the convicts the High Court will order a fresh trial. If, on the other hand, it comes to the conclusion that no such prejudice was caused and no failure of justice was occasioned the appeal will be heard and decided upon merits. With regard to the order of remand this may contain a direction that the trial will proceed Crl.R.No.2320 of 2010 (O&M) -5- from the point where the irregularity occurred or a totally fresh trial may be ordered depending on the facts of that particular case. For instance, if the trial Judge h as been transferred a `de novo' trial will be ordered. On the other hand in some cases the same Sessions Judge may be asked to re-examine the accused and to dispose of the case without holding a completely new trial.” Hence, if all relevant questions were not put to accused by the Court, appellate Court is having power to remand the case to examine the accused again under Section 313 Cr.P.C. and the order for remanding the case again and for re-decision of the case from that stage is a valid one and it cannot be said that the same amounts to filling lacuna in the prosecution case. It is the duty of learned Magistrate and not the prosecution to put all relevant questions to the accused and if there is lapse on the part of the Magistrate, prosecution cannot be blamed. In Ganeshmal Jashraj v. Government of Gujarat and another, 1980 AIR (SC) 264, after closure of evidence of the prosecution and examination of accused under Section 313 Cr.P.C., accused was convicted on his plea of guilt recorded, however, case was remanded to trial Court to proceed afresh from the stage of examination under section 313 Cr.P.C. by Hon'ble Apex Court. In Asraf Ali v. State of Assam 2008(3) RCR (Criminal) 835, Hon'ble Apex Court has examined the scope and object of examination of accused under Section 313 Cr.P.C. and it was observed that in certain cases where there is perfunctory examination under Section 313 Cr.P.C. the matter can be remanded to trial Court with a direction to re-try from the stage at which the evidence of prosecution was closed. Hon'ble Apex Court in Tara Singh v. The State AIR 1951 Supreme Court 441, has observed that every error or omission in recording the statement of accused in terms of Section 342 Cr.P.C. does not necessarily vitiate a trial as the error of this type falls within the category of curable irregularities and the question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have occasioned. Crl.R.No.2320 of 2010 (O&M) -6- Hence, in view of this legal preposition, it cannot be said that any illegality has been committed by learned appellate Court in remanding the case to learned trial Court for fresh trial from the stage of recording of statement of accused under section 313 Cr.P.C., warranting interference by this Court. Hence, there is no merit in the present revision petition. The same is, hereby, dismissed. 8.9.2010 (Ram Chand Gupta) meenu Judge Note: Whether to be referred to Reporter? Yes/No.