1. Challenging the dismissal of applications under Sections 243 and 313 of Cr.P.C and seeking re-framing of questionnaire as per the provisions under Sub-section 5 of Section 313 Cr.P.C., petitioner accused No.2-S.K.Rana, Director, ARC Indian Engineers Pvt. Ltd., has come up before this Court praying for setting aside the impugned order dated 29.5.2015, passed by learned Judicial Magistrate First Class, Nahan, District Sirmaur, Himachal Pradesh in Criminal Misc. Application No. 175/6 of 2015 under Section 313 of Cr.P.C. and 176/6 of 2015 under Section 243 of Cr.P.C., titled as M/s Shiva Electrical Industries Vs. ARC India Engineers Pvt Ltd and another. State of HP Vs. Dadan Singh and another.
2. The facts apposite to decide the present controversy are that statement of petitioner/accused Mr. S.K. Rana, was recorded, under Section 313 Cr.P.C. on 5.11.2014, wherein he took a specific stand that his mind was perturbed when he was facing false charge of liability of huge amount and moreover the questions which were put to him are not simple and understandable being confusing because number of incidents have been mentioned there-before and due to these reasons the petitioner/accused could not understand the questions and somewhere answered wrongly after receiving wrong impression. In answer to question No.5 that is put to accused under Section 313 Cr.P.C., he has stated that ‘this is right, the cheque in question was given as guarantee cheque to Mr. ‘Vinod Garg’. The word ‘Vinod’ has been reflected instead of ‘Vijay’ because the petitioner/accused has said different to the statement which was recorded. Therefore, it is prayed that the application be allowed and the questionnaire of accused Mr. S.K. Rana may be re-framed and again put to him as per the provisions laid down in Sub Section 5 of Section 313 of Cr.P.C. Hence the present petition.
3. Feeling aggrieved by the order of learned trial court, petitioner-accused S.K. Rana has maintained the instant revision petition before this Court.
4. I have heard Mr. Varun Chandel, learned counsel for the petitioner and Mr. Bhupinder Singh Ahuja, learned counsel for respondent No.2 and also gone through the records of the case.
5. Interestingly respondent No.1 herein, who was complainant before the learned trial court, stood served but despite service neither he remained present nor represented by any counsel. The order dated 22.2.2016 is extracted hereinbelow:
“Respondent No.1 stands served. However, despite service respondent No.1 is not present either personally or through its authorized representative or counsel, hence respondent No.1 is proceeded against ex parte. This Court had directed effectuation of service upon respondent No.2 through the Sr. Superintendent of Police, Gurgaon (Haryana). However, the Sr. Superintendent of Police,has refused to accept the requisition made upon him in the regard aforesaid. A fresh requisition be made upon the Sr. Superintendent of Police, Gurgaon (Haryana) with a direction to ensure effectuation of service upon unserved respondent No.2. In case, there is again a refusal on the part of the Sr. Superintendent of Police, Gurgaon, to accede to the requisition aforesaid, this Court would be constrained to initiate against him appropriate action in accordance with law. For completion of service through the Sr. Superintendent of Police, Guagaon (Haryana) upon unserved respondent No.2, the matter be listed after four weeks.”
6. Mr. Varun Chandel learned counsel for the petitioner has argued that Section 313 of the Code provides an opportunity to the accused ‘personally to explain any circumstance appearing in the evidence against him.’ He further argued that Sub-section (3) of Section 313 of the Code makes it clear that accused shall not render himself liable for punishment by refusing to answer such questions or by giving false/wrong answers to them. He has further argued that if after framing the question the accused is asked as to what he has to say, a sensitive accused may take it that it is mandatory duty on his part to answer the question or that disobedience thereof shall entail a punishment. Therefore, it would be better if he is asked whether he wished to say anything in the matter. He has further argued that taking into consideration the law laid down by Hon’ble Karnataka High Court in case titled as State by the Deputy Superintendent of Police, Railway, Hubli Vs. Dashrath and others (Criminal Appeal No. 525 of 1987 decided on 12.3.1991) and Hon’ble Punjab and Haryana High Court in case titled as Mohammad Isha Vs. State of Haryana (Criminal Revision No. 2088 of 2003 decided on 17.11.2003) and our own Hon’ble High Court in case Sh. Bhagat Singh Negi Vs. the Tripple ECH Construction Pvt. Ltd. through its Director, (Cr. Revision No. 79 of 2013 with Cr. Revision No. 80 of 2013), wherein re-examination of accused afresh under Section 313 of the Code was ordered to be allowed.
7. On the other hand, Mr. Bhupinder Singh Ahuja, learned counsel for respondent No.2 has supported the arguments put-forth by Mr. Varun Chandel, learned counsel for the petitioner.
8. The cumulative reading of all the judgments shows that if a question under Section 313 of Cr.P.C. does not put to the accused, which is incriminating, the case can be remanded back to the learned court below by asking the court below to put all the questions on the basis of evidence which is against the accused. This Court finds that Question No.5 as put to the accused by the learned court below should have been put in two parts. (A) it has come in the evidence of the complainant against you that the matter was finally settled between you and the complainant for a sum of Rs. 21,44,000/-. What have you to say about it? (B) that in view of the settlement you issued a cheque of Rs. 21,44,000/- in the name of accused No.1, Ext. CW1/A. What have you to say about it?
9. In view of above, the impugned order dated 29.5.2015, passed by learned Judicial Magistrate First Class, Nahan, District Sirmaur, Himachal Pradesh in case Criminal Misc. Application No. 175/6 of 2015 under Section 313 of Cr.P.C. and 176/6 of 2015 under Section 243 of Cr.P.C., titled as
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M/s Shiva Electrical Industries Vs. ARC India Engineers Pvt Ltd and another. State of HP Vs. Dadan Singh and another is set aside and the matter is remanded back to the learned trial court with a direction to re-cast question No.5 in two parts and then take answers of these two parts under Section 313 of Cr.P.C. and then to record the answers of these two parts of question No.5 and thereafter proceed with the matter as per law. Parties are directed to appear before the learned trial court on 29h November, 2021. Record of the learned trial court be returned forthwith so as to reach well before the date fixed. 10. Pending miscellaneous applications, if any, also stands disposed of.