Invoking the revisional jurisdiction under Section 397 read with Section 401 of Cr.P.C., the petitioner has filed this revision being aggrieved of the judgment dated 19.07.2023 passed by learned First Additional Sessions Judge, Agar District Shajapur, in Criminal Appeal No.414/2016 whereby learned appellate Court has set aside the judgment dated 04.12.2015 passed by Judicial Magistrate First Class, Agar, in RCT No.991/2014 and remitted the case back to the trial Court for re-examining the accused under Section 313 and to pass a reasoned and cogent order.

2. In order to decide this criminal revision, brief facts of the case is that the petitioner was tried by the Judicial Magistrate First Class, Agar, District Shajapur and after considering the evidence available on record he was convicted for offence under Section 304(A) of IPC, 1860 and sentenced to undergo 1 year R.I and fine of Rs.1,000/- with default stipulations. Being aggrieved by the aforesaid judgment, the petitioner has filed an appeal before First Additional Sessions Judge, Agar, District Shajapur, wherein learned Appellate Court in compliance of law laid down by this Court in the Case of Sunil vs. State of M.P. reported in 2023 (1) MPLC 356 or 2023 Lawsuit (MP)68 remanded the matter to the trial Court for re-examining the accused under Section 313 of Cr.P.C and to pass a reasoned and cogent order after affording the opportunity of defence evidence. Being dissatisfied by the impugned order, the petitioner has knocked the portal of this Court by filing this revision petition submitting that the impugned judgment passed by learned appellate Court is neither legal nor proper.

3. The petitioner in his revision memo and arguments submitted that the impugned judgment of the learned appellant Court is against the fact and also against the settled principle of law. It is submitted that first and foremost, it is visualized from the bare perusal of the impugned judgment that learned appellate Court has remitted back the matter for the purpose of filling up the loop holes in the prosecution case, which is wrong and illegal, therefore not sustainable in the eyes of law. The learned appellate Court has misinterpreted the law laid down by this Court in the case of Sunil vs. State of M.P. , vide order dated 08.02.2023 passed in Cr.A. No.859/2010. It is also submitted that in case, if the incriminating piece of evidence is available against accused and opportunity to explain that evidence has not been afforded to the accused, then on that basis conviction cannot be carried out.

4. In the course of arguments, learned counsel for the appellant relied upon the Full Bench judgment passed in the case of Nasib Singh vs. State of Punjab reported as ( 2022)2 SCC 89 and Rajkumar vs. State (NCT of Delhi ) reported in 2023 Lawsuit (SC) 533. On that basis, the petitioner has expostulated that since the appellant was not confronted to incriminating circumstances produced by the prosecution, the conviction of the appellant stands vitiated. On these grounds learned counsel for the petitioner requested to set aside the order of the appellate Court as well as the order of the trial Court.

5. On the contrary, learned Govt. Advocate remonstrated that it is duty of the Court to examine the accused properly. If the appellate Court has remanded back the case for additional examination of the Signature Not Verified Signed by: SUMATHI Signing time: 11-08- 2023 11:34:26 4 accused, it cannot be regarded against law. Ample evidence against the appellant are available on record hence the order of trial Court and first appellate Court cannot be turned down.

6. In the back drop of the rival submissions, the conundrum of the case is as to whether the order of Appellate Court remitting back the case to trial Court for additional re-examination of accused is incorrect in the eyes of law and facts.

7. On this aspect I have gone through the judgment of appellate Court and trial Court as well as the prosecution evidence recorded before the trial Court and examination of accused. In para-10 of the judgment, the learned appellate Court has clearly mentioned that in examination of accused, no question was raised to the accused as to whether the accused was driving the vehicle or whether the said incident was caused by the accused. After going through the examination of accused the aforesaid observation of the learned appellate Court is found correct. In all 16 questions nothing was enquired with regard to who was driving the vehicle, whereas in the depositions of the prosecution witnesses, this was clearly frescoed that the said jeep was driven by accused Chetan. On this aspect, statement of Jakir (P.W.4) can be taken into account. It is also revealed from the perusal of para -10 of the judgment that the appellant has raised the contention that on account of not taking his explanation, his defence has been affected, under such circumstance, there are only two courses available to the appellate Court either to acquit the accused or remit the case for giving him opportunity to explain the matter.

8. In this regard, full Bench decision rendered by Hon‟ble Apex Court in the case of Shivaji Sahabrao Bobade vs. State of Maharashtra (1973)2 SCC 793 is relevant to quote here:

9. Further in the case of Asraf Ali vs. State of Assam reported in (2008) 16 SCC 328, Hon‟ble Apex Court has held in para 19 to 22 of the aforesaid judgment, Hon‟ble Apex Court has held as under:

21. Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.

22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed similar view in S. Harnam Singh v. The State (AIR 1976 SC 2140), while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non- indication of inculpatory material in its relevant facets by the trial Court to the accused adds to vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a purposeless exercise."

10. In the case of Sukhjit Singh vs. State of Punjab reported as (2014)10 SCC 270 Hon‟ble Apex Court endorsing its another judgments, articulated as under:-

11. On this fact, it is also relevant to quote the following observations made by Hon‟ble Supreme Court in the case of Samsul Haque vs. State of Assam reported in (2019) 18 SCC 161 wherein in para 22 as under:

12. In the case of Sunil vs. State of M.P. (Supra), while referring and endorsing the aforesaid observations of the Apex Court, the Division Bench of this Court in the judgment has mandated as under:

13. In the conspectus of the aforesaid principles and material on record, it is obvious that if there is significant incriminating evidence on record against the accused, then he should be given sufficient Signature Not Verified Signed by: SUMATHI Signing time: 11-08- 2023 11:34:26 8 opportunity to explain it, otherwise it would vitiate the trial. In order to comply with the principles of natural justice, the appellate Court is competent to remand the case for additional examination of accused under Section 113 of Cr.P.C.

14. Now coming to the law laid down by Hon‟ble Supreme Court in the case of Rajkumar vs. State (NCT of Delhi ), certainly in this case, Hon‟ble Supreme Court has held that since the incriminating circumstances have not been put to the accused during the examination of accused the conviction of the appellant stands vitiated but the facts of that case are much different to the case in hand. In order to express the said difference para - 20 of Rajkumar vs. State(Supra) is worth reproduce here:-

15. In view of the aforesaid circumstances, Hon‟ble Apex Court found that option of remand will be unjust. However, in the case at hand the said incident took place on 27.09.2014, the case is less than 9 years old and the appellant has not suffered any sentence. In addition to that the appellant himself raised the point before the First Appellate Court regarding not asking question with regard to incriminating facts.

Therefore, owing to variance of facts, the petitioner cannot be benefitted by the law laid down by the Hon‟ble Apex Coust in the case of Rajkumar vs. State(Supra).

16. Shri Gaurav Shrivastava, learned counsel for the petitioner has drawn attention of this Court to the law laid down by Hon‟ble Apex Court in para 33 of Nasib Singh vs. State of Punjab (Supra) wherein Hon‟ble Apex Court has discussed the formulation of principles of retrial which is reproduced as under:

trial. Only if the lapses are so grave so as to prejudice the rights of the parties, can a retrial be directed;

(iii) A determination of whether a „shoddy‟ investigation/trial has prejudiced the party, must be based on the facts of each case pursuant to a thorough reading of the evidence;

(iv) It is not sufficient if the accused/ prosecution makes a facial argument that there has been a miscarriage of justice warranting a retrial. It is incumbent on the Appellant Court directing a retrial to provide a reasoned order on the nature of the miscarriage of justice caused with reference to the evidence and investigatory process;

(v) If a matter is directed for re-trial, the evidence and record of the previous trial is completely wiped out; and

(vi) The following are some instances, not intended to be exhaustive, of when the Court could order a retrial on the ground of miscarriage of justice:

17. Stressing on the aforesaid findings regarding re-trial learned counsel Shri Shrivastava submitted that if the matter is directed for re-trial the findings and the record of the previous trial is completely wiped out. However, the procedure of re-trial is used here regarding "shoddy" investigation/trial, and it is not with regard to only asking question to accused regarding incriminating circumstances. On this aspect Hon‟ble Apex Court in Full Bench decision rendered in Nasib Singh (Supra) has endorsed the enunciation of its judgment passed in Nar Singh vs. State of Haryana reported in (2015)1 SCC 496 in para-29 as under:

18. It means that in course of trial, if all the relevant questions are not put to the accused by the trial Court and when the accused has shown that prejudice was caused to him, the appellate Court is competent to remand the case to examine the accused again under Section 313 of Signature Not Verified Signed by: SUMATHI Signing time: 11-08- 2023 11:34:26 11 Cr.P.C . The learned trial Judge may be directed to examine the accused and defence witnesses, if any, afresh and dispose of the case afresh. As such, the retrial will be commenced from the stage of questioning the accused under Section 313 of Cr.P.C. Since the aforesaid principle laid down in Nar Singh (Supra) has been endorsed by Full Bench of Hon‟ble Apex Court in the case of Nasib Singh (Supra) the aforesaid contentions of the learned counsel for the defence is not substantiated.

19. So far as the arguments regarding filling up of loop holes or lacuna is concerned, the fault of not examining the accused properly cannot be attributed to the prosecution but rather it would be attributed to the learned trial Court, hence the question of filling up of lacuna does not arise. On this point in Nar Singh (Supra) Hon‟ble Supreme Court has enunciated the following view, which is relevant to the context of this case:-

20. Since the aforesaid law laid down by the Hon‟ble Apex Court in Nar Singh (Supra) is neither overruled, nor distinguished; it holds the field and therefore, the argument of the petitioner regarding filling up of lacuna/loopholes is also found unsustainable.

21. In view of the aforesaid discussions and observations, this Court is of the view there is no illegality or perversity in the impugned order and no case for interference is warranted in this revision petition, therefore, the same is dismissed as devoid of merits.

22. A copy of this order be sent to the concerned Court for necessary information.

Certified copy, as per rules.

(PREM NARAYAN SINGH) JUDGE sumathi Signature Not Verified Signed by: SUMATHI Signing time: 11-08- 2023 11:34:26