STATE OF PUNJAB Vs. GURDIAL SINGH

JUDGEMENT

(1.) THE learned Sessions Judge, Patiala, has referred this matter to this Court under Section 395 (2), Cr. P. C. since in his opinion a question of law arises as to whether that Court, to which a matter had been sent back by this Court under Section 401, Cr. P. C. to write a fresh judgment, could still exercise its powers under Section 313 (1) (a), so as to put material appearing in the prosecution evidence to the accused in order to afford them an opportunity to explain the same, before proceeding to prepare a fresh judgment.

(2.) SETTING aside an order of acquittal in Criminal Revn. No. 868 of 1980 Bachan Singh v. Raghbir Singh I had, on February 17, 1983, remitted the case back to the Court of Session, Patiala, directing it to write a fresh judgment after considering all the material evidence which had been left out, to draw proper inferences and avoid the illegalities pointed out therein. That order be adverted to, if need be, for better appreciation. This judgment need not be burdened with details thereof.

(3.) UNDOUBTEDLY, on the exercise of power under Section 401, Cr. P. C. this Court can exercise any of the powers conferred on a Court of appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307, but subject to the limit that this Court cannot convert a finding of acquittal into one of conviction, which ordinarily the High Court in exercise of its appellate powers, can do if an appeal is preferred before it. All the same, in an appeal against acquittal the appellate Court under Section 386 can reverse such an order and direct that, further enquiry be made, or that the accused be retried or committed for trial, as the case may be. This obviously means that the Court can fix the stage from which retrial should commence. In the instant case, I had fixed that stage to be 'writing the judgment'. But that did not mean that I had in any way impinged on the powers of the Court of Session to proceed in that direction in curtailment of its powers, otherwise vested in it, under the Code of Criminal Procedure. Within that domain, particular attention need be invited to Section 313 (1) (a), Cr. P. C. in which the Court has been given the power at any stage during the trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, to put any questions to him as the Court considers necessary. As is plain, the trial concludes on the pronouncement of judgment and any stage prior thereto is a stage at the trial. Thus plainly Section 313 (1) (a) was attracted in the instant case. It would not make any difference if the stage as envisaged under Section 313 (1) (b) was over, for Section 313 (1) (a) was comprehensive enough to cover any situation conferring discretion on the Court. And thus by no means could it ever be said that its availability had been shut out to that Court merely because the dictate of this Court was that fresh judgment be written. In this view of the matter, the question of law referred by the Court of Session stands answered, by holding that it has such power and it is within its discretion to exercise it to further the cause of justice.