1. Special leave granted.
2. This appeal is directed against the judgment of the High Court of Judicature at Patna dated 18-11-1995 and arises in the following circumstances:
In Sessions Trial No. 39 of 1993, 25 persons including the appellants herein were sent up for trial for offences under Sections 302, 302/149 and 396 IPC before the learned Sessions Judge, Jehanabad. The trial court acquitted four accused of all the charges and the remaining 21 accused (the appellants herein) of the charges under Sections 302 and 302/149 IPC. The appellants were, however, convicted for the offence under Section 396 IPC and sentenced to undergo rigorous imprisonment for life. Against their conviction and sentence, the appellants filed an appeal in the High Court. During the hearing of the appeal, it came to the notice of the High Court that the statements of the appellants except that of appellant Janak Yadav had not been recorded under Section 313 CrPC. The High Court in this connection observed:
“During the hearing of the appeals, it came to the notice of the Court that the statement of the accused-appellants (except that of Janak Yadav) have not been recorded. The trial Judge, Shri Ghanshyam Prasad, Additional Sessions Judge II, Jehanabad who finally examined the records for preparing and delivering the judgment in the case too did not care to look into the alleged statement of the accused persons, if any, on record. Equally it was the judicial duty of the trial Judge who was to deliver the judgment finally in the case to look into all the records including the statement of the accused persons for taking them into consideration in the award of the judgment. This is a lapse on the part of Shri Ghanshyam Prasad, Additional Sessions Judge II, Jehanabad in his judicial work.”
3. The High Court took the view that the non-examination of 20 appellants under Section 313 CrPC “is a basic illegality in the trial” and held that “it has been an unfair trial”. The High Court consequently set aside the judgment and order of conviction passed by the trial court on 14-12-1989 and remanding the case to the trial court, ordered retrial of the case. The learned Sessions Judge, Jehanabad was directed to conduct the trial expeditiously. The High Court also directed — “The Sessions Judge shall be examining the case diary and shall be framing appropriate charges afresh relating to murder and dacoity or murder or dacoity as the evidence collected by the investigation warrants to the case. …” and then proceed with the trial.
4. We have heard learned counsel for the parties and in our opinion, the direction issued by the High Court for retrial of the case and for framing of appropriate charges afresh on account of non-examination of 20 appellants under Section 313 CrPC is unwarranted and not supportable at law.
5. Section 313 CrPC prescribes a procedural safeguard for an accused facing the trial to be granted an opportunity to explain the facts and circumstances appearing against him in the prosecution's evidence. That opportunity is a valuable one and cannot be ignored. It is not a case of defective examination under Section 313 CrPC where the question of prejudice may be examined but a case of no examination at all under Section 313 CrPC and as such the question whether or not the appellants have been prejudiced on account of that omission is really of no relevance. It was open to the High Court to have either examined the accused, whose statements under Section 313 CrPC had not been recorded, itself under Section 313 CrPC and then proceeded with the hearing of the appeal or directed retrial of the case confined to the stage of recording of the statements of the appellants under Section 313 CrPC but it was not justified to order the retrial of the entire case by framing de novo charges and examining afresh prosecution evidence. The direction of the High Court to that extent cannot be sustained.
6. We, accordingly, accept this appeal and set aside the order of the High Court to the extent it directs retrial of the case from the stage of framing of the charges and confine the retrial of the case to the stage of the recording of the statements of the appellants, whose statements have not been recorded under Section 313 CrPC. After recording their statements and the defence evidence, if any, the trial court shall pass fresh orders in accordance with law on the basis of the prosecution evidence already on the record and the defence evidence, if any, which the appellants may lead after their examination under Section 313 CrPC. The trial court shall conclude the proceedings expeditiously. The appeals, therefore, succeed to the extent indicated above and are allowed.