VINOD K.SHARMA, J. - (1.) THIS Criminal Revision Petition has been filed against the order dated 14.2.2007 passed by the learned Addl. Sessions Judge, Barnala vide which the appeal filed by the appellant against the judgment of conviction was accepted and the case was remanded back to the trial Court by observing as under :- "8. Shri Rahul Gupta at the very on the set of his submissions has led a scathing attack on the manner in which the charges have been framed and statement under Section 313 Cr.P.C., of the accused, now appellant, was recorded and has stressed the fact that the there has been total non-adherence to the requirement of law and which arguments have been adequately accepted by both the counsel representing the respondents and that all the documents not having been put to the accused nor the circumstances while recording her statement under Section 313 Cr.P.C. Giving thoughtful consideration to these arguments, the position of law is well laid down in the case Balwinder Singh v. State of Haryana reported in 1995(2) R.C.R. 214, where reliance was placed on a Full Bench view of the Hon'ble High Court in the case Dara Singh v. State reported in AIR 1952 Punjab 214, whereby it was very well laid down that in the eventuality, when all relevant questions are not put to the accused, remand by Appellate Court was justified as there was no question of filling lacuna in the prosecution case as it is clearly lapse on the part of the Court for which the prosecution cannot be blamed and reverting back to the instant case, as has been observed by this Court, the material documents comprising of complaint Ex. PA, inquiry report of ASI Ram Singh Ex. CW3/A, certificate of Dr. Surinder Pal Mittal, Ex. CW8/A, report Ex. CW5 treatment by Dr. Sukhdev Singh Dhaliwal have never been put to the accused while recording her statement under Section 313 Cr.P.C. and all these documents are material documents and evidence against the accused for which she has been denied a valuable right to explain and give satisfactory answers to these facts and evidence and by not doing so, the Learned Lower Court has certainly run into an error causing immense prejudice to the case of the accused/appellant and in view of the position of law detailed above, compels this Court to hold such a process so adopted by the Lower Court to be prejudicial to the interest of the appellant and therefore, making it imperative for this court to accept this appeal to that limited extent and in view of these circumstances, the matter, as such, is remanded back to the trial court to proceed ahead in accordance with law. Both the parties have been directed to appear before the learned Trial Court on 2.3.2007. Before parting with this judgment, it is necessary to highlight though not argued by any of the sides, the charges in this case has not been properly framed as it finds mentioned therein "due to rash and negligent act", when it ought to have been "rash or negligent" and even there has been no consideration of the applicability of provisions of Sections 312, 313, 314, 316 IPC, commensurate with the evidence led on the record. Lower court record be sent back immediately and appeal file be consigned to the record room."
(2.) THE learned counsel for the petitioner challenges the said order primarily on the ground that by way of remand the prosecution has been allowed to fill in lacuna, which cannot be allowed as this would cause severe prejudice to the petitioner who has faced the criminal prosecution since 10.3.1999. The learned counsel for the petitioner also contends that the order of remand cannot be sustained as the benefit of lapse of the prosecution is to be given to the accused. It was also argued by the learned counsel for the petitioner that in the present case the evidence brought on record did not justify the remand of the case.
(3.) MR . Ashok Singla, learned counsel appearing on behalf of the petitioner also contends that in the present case earlier application was made before the learned trial Court which was dismissed and no objections against the said decision were filed by the prosecution and, therefore, it was not open to the learned lower appellate Court to have granted relief to the prosecution. In support of this contention the learned counsel for the petitioner placed reliance on the judgment of the Hon'ble Supreme Court in the case of Machander v. The State of Hyderabad, AIR 1955 Supreme Court 972 to contend that the fact of non-compliance of Section 342 Cr.P.C. entitled the accused to acquittal. The Hon'ble Supreme Court in the said case on the facts of the said case was pleased to lay down as under :-;