BALVINDER SINGH Vs. STATE OF HARYANA

JUDGEMENT

(1.) 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.

(2.) THE petitioner was prosecuted for the offences under Sections 279, 337 and 304-A 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 304-A 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 304-A 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 accused-appellant 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.

(3.) 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 :-