Balvinder Singh vs State of Haryana

T.H.B. Chalapathi, J.

This revision petition is filed against the order of the learned Addl. Sessions Judge, Hisar, remanding the case to the trial Magistrate for recording the statement of the accused under Section 313 Cr.P.C. and decide the matter afresh.

The petitioner was prosecuted for the offences under Sections 279, 337 and 304A of the Indian Penal Code, on the ground that on April 18, 1989, the accused Balwinder Singh drove a tractor in a rash and negligent manner causing the death of one Palvinder Singh. The prosecution examined ten witnesses, to prove the guilt of the accused and marked certain documents. After closure of the prosecution evidence, the learned Magistrate examined the accused under Section 313 Cr.P.C. and in defence the accused examined two witnesses. On a consideration of the evidence on record, the learned Magistrate convicted the accused for the offences under Sections 279, 337 and 304A of the Indian Penal Code and sentenced the accused to undergo rigorous imprisonment for a period of three months and to pay fine of Rs. 500/ under Section 279, IPC and to undergo rigorous imprisonment for a period of three months and to pay fine of Rs. 250/ under Section 337, IPC and to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 2,000/ under Section 304A of the Indian Penal Code. Aggrieved by the said conviction and sentence imposed by the learned Magistrate, the accused petitioner filed an appeal before the Court of Sessions Judge and the learned Addl. Sessions Judge, Hisar took the view that the learned Magistrate has not put any question with regard to the incriminating evidence with regard to the manners in which the accident took place and, therefore, the accused was not afforded an opportunity to explain as to how the accident took place. He accordingly allowed the appeal, set aside the conviction and sentence imposed by the learned Magistrate and remanded the matter to the learned trial Magistrate with a direction that he shall proceed to record the statement of the accusedappellant under section 313 Cr.P.C. after putting the incriminating evidence to him and dispose of the matter afresh. Aggrieved by the said order, the accused petitioner preferred the above revision petition in this Court.

The learned counsel for the petitioner argued that the learned Addl. Sessions Judge has no power to remand the matter and should have acquitted the accused for noncompliance of the provisions of section 313 Cr.P.C. The learned counsel relied on a Single Bench decision of this Court in Makhan Singh v. State of Punjab, 1992(2) RCR(Criminal) 109 , wherein it was held that remanding a case back to the trial magistrate for recording the statement of the accused under section 313 Cr.P.C. would tantamount to allowing the prosecution to fill in the lacuna which could not be legally done. To the same effect is the decision of another learned Single Judge in Mahender Singh v. State of Haryana, 1994(1) Recent Criminal Reports 574 wherein his Lordship observed as follows :

"The learned Additional Sessions Judge, Rohtak was not justified in remanding the case to the trial court which was virtually amount to allow the complaint to fill in the lacunae in the prosecution. Non examination of the accused in view of the facts and circumstances of the present case certainly caused grave and material prejudice to the accused which cannot be cured under section 465 of the Code."

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 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. In this view, I am fortified by a Full Bench judgment of this Court in Dara Singh v. The State, AIR 1952 Punjab 214. The Full Bench observed as under :

"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 noncompliance 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 from the point where the irregularity occurred or a totally fresh trial may be ordered depending upon 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 reexamine the accused and to dispose of the case without holding a completely new trial." (Emphasis added)

The above decision of the Punjab High Court is binding on this Court. Therefore, it cannot be said that there is no power in the appellate Court to remand the cases when it finds that there is noncompliance of the provisions of section 313 Cr.P.C. I am, therefore, of the opinion that the decisions in Mahinder Singh v. State of Punjab (supra) and Makhan Singh v. state of Punjab (supra), rendered by Single Judges of this Court, are per incuriam & therefore, not binding on me. In the ordinary course, I would have referred the matter to a Division Bench. But in view of the Full Bench decision referred to above, I am not inclined to refer the case to Division Bench. The Supreme Court in Makhan v. State of Punjab, 1971 C.L.J. 1310 held that every error or omission in complying with section 342 Cr.P.C. 1898, does not necessarily vitiate the trial because errors of that type fall within the category of curable irregularities and that the question in each cast, depends upon the degree of the error or upon whether prejudice has been occasioned or is likely to have occasioned. To the same effect is the decision of the Supreme Court in Tara Singh v. The State, 1951 SCJ 518.

It is also useful to refer to the decision in Tej Ram v. Emperor, AIR 1933 Lahore 1002 wherein it was observed that the provisions of Section 342 Criminal Procedure Code, 1898 have not been complied with and this would necessitate are trial from that stage. In State v. D. Dasarath, 1991(3) Criminal Law Journal 2632, the learned Judges remanded the case to the trial Court with a direction that it shall reexamine the accused afresh under section 313 Cr.P.C. in the fight of the observations made by them and thereafter proceed in accordance with law to continue the trial and pronounce its judgment.

In view of the foregoing discussion, I am of the opinion that there is no question an opportunity being given to the prosecution to fill in the lacunae by remanding the matter for examination of the accused under section 313 Cr.P.C. The sessions Judge merely directed the Magistrate to discharge its obligatory duty.

I do not, therefore, find any merits in this petition. The revision petition therefore, fails and is accordingly dismissed.