Crl.Rev.No. 3250 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Rev.No. 3250 of 2010 (O&M) Date of decision: 5.9.2011 Jaswaran Singh @ Nikka and others ......Petitioners Versus State of Punjab .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.H.S.Rakhra, Advocate, for the petitioners. Mr.G.S.Brar, AAG, Punjab. **** SABINA, J. Petitioners had faced the trial under Sections 323/ 324/ 34 of the Indian Penal Code, 1860 in FIR No.43 dated 1.4.2006 registered at Police Station Dhanaula. Vide judgment and order dated 16.9.2010, passed by the trial Court, the petitioners were convicted and sentenced for offence under Sections 323/ 324/ 34 IPC. Aggrieved by the same, petitioners preferred an appeal. The Appellate Court vide judgment dated 12.11.2010 allowed the appeal and remanded the case back to the trial Court with a direction to proceed with the case from the stage of Crl.Rev.No. 3250 of 2010 (O&M) 2 recording of statement of the petitioners under Section 313 of the Code of Criminal Procedure (Cr.P.C.for short). Hence, the present petition by the petitioners. Learned counsel for the petitioners has submitted that the Appellate Court could not have remanded the case back to the trial Court for a fresh trial as the prosecution cannot be allowed to fill up lacuna in its case. In support of his arguments, learned counsel has placed reliance on Balbir vs. State of Haryana 2010 (1) RCR (Criminal) 449, wherein, in para 14, it was held as under:- 'In the present case the raid was conducted in the year 1995. The petitioners faced lengthy investigation and ultimately was convicted in the year 2006. The impugned order was passed against the petitioner in the year 2007. Thus the petitioner has faced this prosecution for a period of nearly 14 years. Requiring him to now face retrial to fill in the lacunas which has remained in the prosecution case on account of question having not been addressed to him would further prolong his agony. In this background, it will not be fair now to direct retrial of the petitioner on account of this delay as well as due to the fact that he will certainly be put to prejudice and advantage will accrue to the prosecution which will have opportunity to fill in the lacuna left in the case. The Hon'ble Supreme Court in the case of Machander (supra) has clearly held that an accused person is to be given a fair and impartial trial. It is also observed that the forces that Crl.Rev.No. 3250 of 2010 (O&M) 3 are arrayed against the accused should not be permitted to repair the effects of their bunglings. The scales of justice are to be kept on an even balance. Applying this principle and the ratio of law, it can be said that the order directing the retrial of the petitioner in the facts and circumstances of this case would not be fair and as such cannot be sustained. The order passed by the appellate Court remanding the case for retrial is set aside. The case will go back to the appellate Court for deciding the appeal afresh on the basis of evidence available on record.” Learned State counsel, on the other hand, has submitted that due to inadvertence, all the relevant questions had not been put by the Court to the petitioners at the time of recording of their statement under Section 313 Cr.P.C. Hence, the Appellate Court could have remanded the case back to the trial Court for examination of the accused again under Section 313 Cr.P.C. Since there was a lapse on the part of the magistrate, the prosecution could not be blamed. In support of his arguments, learned State counsel has placed reliance on Balvinder Singh vs. State of Haryana 1995 (2) RCR (Criminal) 214, wherein, it was held as under:- “I am not able to persuade myself to agree with the above decisions. It is the duty of the Magistrate to put all relevant questions to the accused under Section 313 of the Code of Criminal procedure. It is not the function of Crl.Rev.No. 3250 of 2010 (O&M) 4 the prosecution to suggest the relevant questions. If there is lapse on the part of the Court in putting the relevant questions to the accused, to explain the circumstances appearing in the evidence against him, the prosecution cannot be blamed. The real importance of Section 313 Cr.P.c. is that there is a duty cast upon the court to question the accused properly and fairly so that it is brought home to the accused in clear words the exact case that the accused will have to meet, and thereby an opportunity is given to the accused to explain the circumstances. When the court fails to discharge its duty as envisaged under Section 313 Cr.P.C. it is certainly open to the appellate court to remand the matter back to the trial Court so as to enable it to discharge its obligatory and mandatory duty. Failure of the court in discharging its duty cannot be construed as a lacunae in the case of the prosecution. No one can be made to suffer for the mistake of the court. No prejudice is caused to the accused by remand of the case.” Learned State counsel has further placed reliance on the decision of the Full Bench in Dara Singh and another vs. The State AIR 1952 Punjab 214 (C.N. 87), wherein, in para No.23, it was held as under:- “I may now briefly sum up my conclusions. My answer to the question proposed is that it is within the powers of the Crl.Rev.No. 3250 of 2010 (O&M) 5 High Court to examine and further examine the convictes and that the law does not place any restrictions upon this powers. But is the High Court is of the opinion whether before or after examining the convicts that non- compliance with the provisions of S.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 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 has 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.” Learned State counsel has next placed reliance on Sukhdev Shankar Nikumbe Singh vs. State of Maharashtra 2000 (8) SLT 225, wherein, it was held as under:- “The appellant has been convicted under Section 161 Crl.Rev.No. 3250 of 2010 (O&M) 6 IPC, Sections 5(2) and 5(1) (d) of the Prevention of Corruption Act, 1947. The said conviction and appeal having been affirmed by the High Court, the appellant has approached this Court. It is brought to our notice that the necessary ingredients constituting the offence, as was brought in evidence by the prosecution had not been put to the accused while examining him under Section 313 Cr.P.C. The learned counsel appearing for the appellant states that this has grossly prejudiced the accused and, therefore, the matter should be relegated to that stage. The learned counsel appearing for the State fairly concedes to the aforesaid position. In that view of the matter, we set aside the impugned judgment of the High Court as well as that of the learned Special Judge and direct that the accused be examined under Section 313 Cr.P.C. afresh and all the necessary evidence should be put to him and thereafter the learned Special Judge would proceed in accordance with law.” After hearing the learned counsel for the parties, I am of the opinion that the present petition deserves to be dismissed. Section 313 Cr.P.C. reads as under:- “313.Power to examine the accused .- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court - Crl.Rev.No. 3250 of 2010 (O&M) 7 (a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may, tend to show he has committed.” A perusal of the above provision reveals that all the material circumstances appearing in evidence against the accused have to be put to him so as to enable him to take up his defence and explain those circumstances. Thus, a duty is cast upon the court to put all the incriminating evidence appearing before the accused to him when he is examined under Section 313 Cr.P.C.. The trial Court, in the present case, had, however, failed to discharge its duty as Crl.Rev.No. 3250 of 2010 (O&M) 8 envisaged under Section 313 Cr.PC.. In these circumstances, the Appellate Court has rightly remanded the case back to the trial Court for a fresh decision after re-recording of the statement of the accused under Section 313 Cr.P.C.. It is not a case where the prosecution can be said to have committed any error or omission which would lead to the inference that now lacuna in the case was being filled up. The prosecution has led its evidence but it is only the Court that had failed to discharge its duty. The prosecution case cannot be made to suffer for any mistake of the Court. The trial Court has been directed by the Appellate Court to proceed with the case from the stage of recording of the statements of the petitioners under Section 313 Cr.P.C. Hence, it cannot be said that the prosecution will get any opportunity to fill up the lacuna in this case. The judgement relied upon by learned counsel for the petitioners fails to advance the case of the petitioners as it is based on its own facts. Accordingly, this petition is dismissed. (SABINA) JUDGE September 05 , 2011 anita