JUDGMENT Usha Mehra, J.
1. Since the appeal is of the year 1998 we order that the appeal be listed in the category of Regulars. At the same time we feel that qua appellant No. 1 Prem Kumar, matter should be remanded back to the Trial Court for recording his statement under Section 313 Cr.P.C. At this stage Mr. Roopesh Sharma contended that matter is old. Appellant No. 1 spent four years in custody. It would not be in the interest of justice to remand his case back after 10 years. To support his contention he placed reliance on the following decisions of Supreme Court reported as Rautu Bodra and Anr. v. State of Bihar 1999 SCC (Cri) 1319; Ghulam Din Buch and Ors. v. State of J & K, 1996 SCC (Cri) 986; Kanhai Mishra @ Kanhaiya Misar v. State of Bihar, 2001 SCC (Cri) 537; and Usha K. Pillai v. Raj K. Srinivas and Ors. , 1993 SCC (Cri.) 824.
2. So far as the case of Ghulam Din Buch and Ors. v. State of J & K, 1996 SCC (Cri) 986 is concerned the Apex Court was dealing with a case where after the trial was over, the appeal of the accused was dismissed by the High Court inspite of accused having been deprived of his statement under Section 313 Cr.P.C. When criminal appeal came up before the Supreme Court, it was found that High Court had not taken note of the fact that accused had not been put the crux of the prosecution's case nor sought for his explanation. It was in this background his conviction was held to be unsustainable. But that is not the case in hand. The case is as yet at the appeal stage and the discrepancy has been noticed. Similarly in the case of Kanhai Mishra Alias Kanhaiya Misar v. State of Bihar 2001 SCC (Cri,) 537 the Apex Court observed that the circumstances having not put to the accused in examination under Section 313 Cr.P.C. those circumstances cannot be used against him. There cannot be any quarrel with this proposition. The Apex Court was not considering the question of remand the case because of discrepancy. In the case of Usha K. Pillai v. Union of India and Ors. 1993 SCC (Cri.) 824, the Apex Court observed that provisions of Section 313(1)(b) are mandatory. Further observed that the Court cannot dispense with the examination of the accused under Clause (b) of Section 313 of the Code as the examination is mandatory. However, after holding so, Court set aside the order of the Magistrate and directed the Magistrate for passing appropriate order in the light of His Lordship's direction in that case.
3. So far as the case of Rautu Bodra and Anr. v. State of Bihar 1999 SCC (Cri) 1319 os concerned, in this case decidely the Apex Court did not remand the case back after observing that proper procedure was not followed by the Trial Court. In that case circumstances were not put to the accused in his examination under Section 313 Cr.P.C. Therefore, the Apex Court observed that though circumstances must be excluded from consideration. Apex Court considered that even though the case required to be remanded back but because of long lapse of time, in that case it was 15 years, and the appellant already having served more than four years of imprisonment resort to such a course not justified. In that case the Trial Court convicted the accused. They preferred an appeal before the High Court. Their Criminal Appeal was dismissed and the High Court confirmed the order of conviction and sentence. It was at the stage when they filed appeal in the Supreme Court that the Apex Court noticed that there was a grave error committed by the Trial Court that while examining the appellants under Section 313 Cr.P.C. it did not ask them to explain any of the circumstances appearing in the evidence against them. Admittedly in the present case appellants were convicted under Section 302 IPC on 21st March, 1998 and sentence was awarded on 24th March, 1998. Therefore, much period has not elapsed. Whereas in the case of Rautu Bodra and Anr. (Supra) 15 years period had already elapsed. Perusal of the file shows that statement of the co-accused were recorded on 21st November, 1997. Therefore, not much period has elapsed. The appeal has yet not been decided on merits. Therefore, we deem it proper that conviction and sentence of appellant No. 1 be set aside. We order accordingly and remand the case to the Trial Court with direction that the statement of appellant under Section 313 Cr.P.C. be recorded on 18th September, 2001 and take a decision and send the order to this Court within a period of one month from the date of receipt of this order. Directions are also given to the Superintendent, Central Jail, Tihar, that before he is released he be produced before the Trial Court for recording his statement under Section 313 Cr.P.C. Trial Court record be sent back forthwith with direction to the Sessions Judge to place this before the court concerned.
Usha Mehra, J.
4. Roopesh Sharma appearing for Prem Kumar, appellant No. 1 contended that so far as this appellant is concerned his appeal is likely to succeed because of the serious lacunae is not putting up inculpatory question to him in his statement recorded under Section 313 Code of Criminal Procedure (in short Cr.P.C.) nor eliciting his answers. On the other hand Mr. Ravinder Chadha, appearing for the State says that this argument was also raised by the appellant before the Bench way back on 13th July, 1998. However the Bench while disposing of his bail application rejected the same on merits. It was observed that in spite of this lacunae there was other material on record for rejecting the application. Therefore now appellant cannot be allowed to urge this ground.
5. We have heard Mr. Roopesh Sharma for Prem Kumar, appellant No. 1 and Mr. Ravinder Chadha for the State and have also gone through the record. Even though this argument was raised by the appellant No. 1 but the court rejected his application on other grounds. We find that this is serious discrepancy in the proceedings recorded by the Trial Court, accordingly we admit Prem Kumar, appellant No. 1 on bail, subject to his furnishing personal bond in the sum of Rs. 15,000/- with two sureties of the like amount to the satisfaction of the Trial Court. Order be conveyed to appellant No. 1 through the Superintendent, Central Jail, Tihar.
6. Application stands disposed.