- (1.) THIS is an application-in-revision filed by Amba Lal against the judgment of the Sessions Judge, Partabgarh, camp Ghittorgarh by which his conviction and sentences under Sections 465, IPC and 3/7 of the Essential Commodities Act, were set. aside and the case against him was sent to the Chief Judicial Magistrate, Chittor-garh, for retrial with a direction that the Chief Judicial Magistrate, Chittorgarh, shall give the prosecution an opportunity of proving the alleged confession Ex. P. 3 and to recall Shanti Swaroop, PW 1, in this connection and then to afford a chance to the accused-petitioner to explain all the incriminating evidence appearing against him and to lead such evidence in his defence as he may think proper and thereafter to decide the case afresh according to law.
(2.) THE relevant facts giving rise to this revision-petition may be briefly stated as follows : In the month of June, 1969, the petitioner was a licensed dealer of sugar and was authorised to sell sugar to the Inhabitants of Wards Nos. 12 and 13 of Chittorgarh City on ration cards. For this purpose, the petitioner used to maintain a register, which was issued to him by the Tehsildar, Chitorgarh, on 4. 5. 69. According to the rules, the petitioner was bound to make relevant entries in the said register relating to distribution of sugar to the inhabitants of wards Nos. 12 and 13 on their ration cards. It is alleged by the prosecution that one Paras Ram living in ward No. 12 had a ration card issued to him by the Tehsildar, Chttorgarh. Paras Ram went to the petitioner for purchasing sugar in the month of June, 1969. The petitioner, however, refused to give sugar to him on the false pretext that the former had not received quota for the month of June, 1969. Paras Ram was not satisfied with the reply of the petitioner. He, therefore, presented a complaint Ex. P. 1) in writing before the Tehsildar, Chttor-garh, against the petitioner and requested the Tehsildar to seize the record relating to distribution of sugar by the petitioner. On receipt of this complaint, on 10. 7. 1969, the Tehsildar, Chittorgarh, made an inquiry into the matter, recorded the statements of Paras Ram and the petitioner and seized the register and the ration cards. The Tehsildar then submitted his report along with the record seized to the District Supply Officer, Chittorgarh. Paras Ram also filed a complaint against the petitioner in the court of the 1st Class Magistrate, Chittorgarh, on 15-7-1969, who forwarded the complaint to the Station House Officer, Chittorearh, for investigation under sub-sec. (3) of S. 156, old Cr. P. C. The Station House Officer registered a criminal case and made the usual investigation. In the course of investigation, the Station House Officer took several other documents in his possession and having come to know that the petitioner had forged the signatures of Paras Ram in column No 10 of the entry which he had made in his register relating to distribution of Sugar to Paras Ram for the month of June, 1969, took the specimen handwritings and signatures of the petitioner and got them attested by the Sub Divisional Magistrate, Chittorgarh, on 29-10-1969 and sent the specimen and the disputed writings to a handwriting expert at Indore, who gave a report that the disputed writing was, in all probability, written by the writer of the specimen writing. The Station House Officer collected other evidence against the petitioner and eventually submitted a charge-sheet against him in the court of the Munsiff-Magistrate Chittorgarh, from where the case was transferred to the court of the Chief Judicial Magistrate, Chittorgarh. The learned Chief Judicial Magistrate tried the petitioner and found him guilty of the offences punishable under secs. 465, I. P. C. and 3/7 of the Essential Commodities Act. Consequently, he convicted and sentenced the petitioner to undergo rigorous imprisonment for one year for the offence u/s 465, I. P. C. and six months, R. I. and a fine of Rs. 1000/-, and in default to undergo further rigorous imprisonment for three months under section 3/7 of the Essential Commodities Act. Aggrieved by his convictions and sentences, the petitioner filed an appeal in the court of the Sessions Judge, Partabgarh. The learned Sessions Judge accepted the appeal, setside the convictions and remanded the case to the Chief Judicial Magistrate Chittorgarh, for retrial with the directions mentioned above. As against this order, the petitioner has com-up to this Court in revision. The revision petition was admitted by this Court and notice thereof was given to the State. Dr. S. S. Bhandawat has appeared on behalf of the State. I have heard him and Mr. Dalveer Bhandari learned counsel for the petitioner. It has been contended before me by the learned counsel for the petitioner that the Sessions Judge committed an error in remanding the case to the Chief Judicial Magistrate for retrial, because no order for remand for the purpose of allowing the prosecution to fill-up gaps or lacunae in its case could legally be passed. It was further argued by him that it was the duty of the prosecution to prove that the alleged confession Ex. p. 3 was made by the petitioner before the Tehsildar. If the prosecution failed to adduce sufficient evidence in proof of the alleged confession, it cannot be permitted at the appellate stage to supply deficiency, if any, in its case. Another contention put forward by the learned counsel for the petitioner is that it was the duty of the trial court to comply with the mandatory provisions of S. 342, Cr. P. C and to question the accused properly and fairly bringing to his notice each material circumstance appearing in the prosecution case against him and to afford him a chance to explain it, if he could and so liked. According to the learned counsel in the instant case the petitioner was not questioned by the trial court in respect of the evidence relating to his alleged confession Ex. P 3, but the trial court convicted him on the basis of his aforesaid confession. This error or omission on the part of the trial court in complying with the provisions of S. 342 old Cr. P. C. has caused great prejudice to the petitioner and the Sessions Judge should have altogether excluded the alleged confession of the petitioner from consideration on this ground. In support of the above contentions, the learned counsel relied upon Suresb Chandra vs. Emperor (1), Sochiram vs. Emperor (2), Machander vs. Hyderabad State (3) and Nemal Adak vs. State (4 ). Dr. S. S. Bhandawat. appearing on behalf of the State, on the other hand, argued that the Sessions Judge was justified in ordering retrial of the petitioner on the ground that the provisions of S. 342, old Cr. P. C. were not complied with by the trial court and the petitioner was not questioned in respect of his alleged confession Ex. P. 3. Dr. S. S. Bhandawat further urged that if the non compliance with the provisions of S. 342, Cr. P. C. has resulted in prejudice to the accused and has vitiated the trial, the matter should be set right by again questioning the petitioner as required under S 342 Cr. P. C. and then by calling upon him to produce his defence. In this connection, he referred me to a recent decision of the Supreme Court reported in Shivaji vs. State of Maharashtra (5 ). As regards the direction given by the Sessions Judge to the trial court to recall the Tehsildar, Chittorgarh, for the purpose of proving that the alleged confessional statement was signed by the petitioner, Dr. Bhandawat contended that the prosecution should be allowed to place its case in proper and legal manner and that if the Tehsildar is recalled to prove the cnfessional statement, it cannot be said that the prosecution has been allowed to fill up lacunae in it? case. I have given my anxious consideration to the rival contentions. At the outset I may observe that in the present case the prosecution relied upon confessional statement alleged to have been made by the petitioner before the Tehsildar. The confessional statement is marked Ex. P. 3. It appears from the record that the prosecution examined Shanti Swaroop, Tehsildar, P. W. 1, to prove the conessional statement of the petitioner. Shanti Swaroop stated in his deposition that Amba Lal dis-closed to him that he had made an entry after preparing a forged signature and that he had committed mistake and his statement is Ex. P. 3. The following lines appearing in his statement are quoted below: *** After going through his statement, the Sessions Judge, however, felt that Shanti Swaroop did not say in his deposition that the confessional statement Ex. P. 3 bears the petitioner's signatures, So he thought it fit to direct the trial court to recall Shanti Swaroop for the purpose of proving the signatures of the petitioner on the confessional statement. In my opinion, retrial could not be ordered for the purpose of filling up lacunae, if any, in the prosecution evidence to the great prejudice of the petitioner. The Sessions Judge ought to have considered the statement of Shanti Swaroop as it is and appraised the weight to be given to it It was not open for him to order retrial in order to enable the prosecution to supply deficiency, if any, in the evidence of Shanti Swaroop Conequently I feel persuaded to hold that on this ground the Sessions Judge should not have ordered retrial, but should have given a finding on the material on the record whether the alleged confessional statement Ex. P. 3 was or was not proved to have been made by the petitioner before Shanti Swaroop, Tehsildar As regards the other ground on which retrial has been ordered, I may say that the petitioner was not questioned under S. 342, old Cr. P. C. in respect of his alleged confessional statement Ex. P. 3. The trial court ought to have brought this incriminating piece of evidence to the notice of the petitioner in order to enable him to give any explanation in respect thereof, because without affording a chance to the pstitioner to explain this incriminating piece of evidence, the trial court was not justified in making use of it against him. This error or omission on the part of the trial court in complying with the mandatory provisions of Section 342, old Cr. P. C. , has, no doubt, caused prejudice to the petitioner. However, where such an error or omission has occurred, two courses were open to the Sessions Judge, Partabgarh Either he should have ordinarily excluded this \ piece of evidence, i e confessional statement of the petitioner from consideration or he should have called upon the counsel for the petitioner to show whether the petitioner had any explanation to give as regards his confessional statement Ex. P. 3 about which he had not been questioned in the trial court. If the petitioner was unable to explain this piece of evidence, i. e. his confessional statement Ex. P. 3, it was open to the appellate court, i. e. the Sessions Judge to assume that the petitioner is not able to afford any explanation and that even if he was examined as to his confessional statement in the trial court, he would not have been able to explain it. Reliance in this connection may be placed on Shivaji vs. State of Maharashtra (supra), wherein the following observations' were made on this point by their Lordships of the Supreme Court: " It is trite law, nevertheless fundament, that the prisoner's attention should be drawn to every inclulpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial end failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the Court must ordinarily eschew such material from considertion. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him an i if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. In such a case, the court proceeds on the footing that though a grave irregularity has occurred as regards compliance with section 342 Cr. P. C. the omission has not been shown to have caused prejudice to the accused. . . . . . " The Sessions Judge without adopting the two courses mentioned above, ordered retrial without taking into consideration the fact that the case against the petitioner is hanging on for about six years and that the retrial would involve further considerable hardship and expense to him. Consequently, I accept this revision petitions set aside the judgment of the Sessions Judge, Partabgarh, camp Chittorgarh, dated 15th July, 1975, ordering retrial of the case and send the case back to him with a direction to decide Amba Lal petitioner's appeal on merits in accordance with law and in the light of the observations made above. .;