1. Heard the learned Counsel for the petitioner, who is the original complainant.

2. The petitioner had filed a case under Sec. 138 of Negotiable Instruments Act and it was registered as Criminal Case No.951/2003 before the J.M.F.C. Khed. After trial, the Magistrate convicted the accused No.1, who is respondent No.1 before this Court. He challenged the conviction and sentence in Criminal Appeal No.13/2006. The learned Addl. Sessions Judge, Khed, came to conclusion that material incriminating circumstances against the accused were not put to him under Sec.313 of Cr.P.C. and thus the accused was not given opportunity to explain those circumstances. In view of this, the learned Addl. Sessions Judge by judgment and order dated 8.12.2007 set aside the conviction and remanded the case back to the trial court with a direction that the statement of the accused under Sec. 313 should be properly recorded by putting incriminating circumstances to him. The Sessions Court further directed that after recording the statement of the accused, the trial Court shall proceed to hear the argument of both parties and decide the case afresh again. After remand, the statement of the accused under Sec.313 was recorded as per directions. After recording of the statement, the accused moved an application Ex.83 and requested the trial court to issue summons to a person, whom he wanted to examine as a defence witness. That application was opposed by the complainant. The request made by the accused was rejected and the objection of the complainant was upheld by the Magistrate. That order was challenged by the accused in Cri. Revision Application No.34/2008. After hearing the parties, the learned Addl. Sessions Judge, Khed, allowed that revision application and directed the trial court to issue summons to the defence witnesses. That order is challenged by the complainant in the present Writ Petition.

3. The learned Counsel for the petitioner vehemently contended that the learned Addl. Sessions Judge while setting aside the conviction and remanding the case back to the trial Court had specifically directed the trial Court to put the incriminating circumstances to the accused under Sec. 313 Cr.P.C. and after recording the statement, to hear the argument and to dispose of the matter as per law. As per the learned Counsel, that clearly restricted the power of the trial Court against recording the defence witness. According to him, after the statement u/s. 313 was recorded again, and arguments were heard, there was no scope for the accused to lead defence evidence. I am afraid, these arguments are against the basic principles of the Criminal Jurisprudence and natural justice.

4. The purpose of Sec. 313 Cr.P.C. is to put the incriminating circumstances which may be used against the accused to him so that he may get an opportunity to explain the same. Sec. 313(1)(a) provides that the Court may at any stage without previously warning accused put such question to him as the Court considers necessary. Clause (b) of Sec.313(1) specifically provides that the Court shall after the witnesses for prosecution have been examined and before he is called on for his defence, question him generally on the case. That clearly shows that normally, the stage of recording of statement of accused under Sec.313 Cr.P.C. comes after the prosecution has completed the evidence. At that stage, the Court is expected to examine the accused generally on the case for the purpose of enabling the accused personally to explain any circumstances appearing in the evidnece against him. Clause (b) also makes it clear that stage of recording statement under Sec. 313 is before the accused is called on for his defence. It clearly shows that after the statement of the accused under Sec. 313 Cr.P.C. is recorded, he will have an opportunity to lead defence evidence if he so desires. It is because of this reason only that after Sec. 313 the specific provision is made under Sec. 315 Cr. P.C. that any person accused of an offence before the Criminal court shall be competent witness for the defence and may given evidence on oath in disproof of the charges made against him. It should be remembered that when the prosecution witnesses are examined, they may be cross-examined either by the accused himself or by the Advocate. However, Sec.313 requires that the incriminating circumstances shall be put to the accused to enable him to explain the same personally. After the statement is recorded, under Sec. 315 he is competent to give his own evidence on oath though except on his own request, he cannot be called as a witness to depose.

5. The Code of Criminal Procedure provides for the procedure for trial of sessions cases, warrant case and summons cases in Chapters, XVIII, XIX and XX. XVIII pertains to the trial of sessions cases. Section 332 prohibits that after the evidence of prosecution and after examining the accused under Sec. 313, and hearing the prosecution and defence, the Judge considers that there is no evidence that the accused had committed the offence, he shall record an order of acquittal. But if he does not pass an order of acquittal under sec. 232, he shall call upon the accused to enter on his defence and adduce any evidence he may have in his support under Sec.233 Cr.P.C. Similarly, in the warrant trial procedure also after the prosecution evidence is completed under Sections 243 and 247, the accused shall be called upon to enter upon his defence and produce his evidence. In the procedure for trial of summons cases, similar provision is made in Section 254 which provides that if the accused is not convicted under Section 252 on his plea of guilty or Sec. 253 Cr. P.C., the Magistrate shall proceed to hear the prosecution and take all such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. Chapter XXI pertains to the summary trial. Sec. 262(1) provides that in the trial under Chapter XXI, the procedure specified for the trial of summons case shall be followed except in respect of matters specifically prescribed in Sec. 260.

6. From the legal provisions incorporated in the different chapters dealing with trial of sessions cases, warrant trial cases and summons cases, it is clear that after the prosecution evidence is completed, statement of the accused has to be recorded to enable him to explain the incriminating circumstances against him personally. After that comes the stage where the accused is to be called upon to lead defence witness if he so desires. In the defence, he may examine himself on oath as provided in Sec. 315 or he may examine any other witness. If he requires, the trial Court is expected to issue summons to the witnesses. When the Sessions Court set aside the conviction and remanded the case for recording statement under Sec.313 properly, naturally, the case went back to the trial Court at the stage of 313 Cr.P.C. and naturally, after that stage right of defence would come. The learned Addl. Sessions Judge while passing that order could not anticipate that there could be a judicial officer who did not know the procedure or that the lawyer could argue that as the Sessions Court had not specifically mentioned that the accused shall be given right of defence, such right could not be given. In view of the legal provisions, after statement recorded of the accused u/s. 313, the accused is entitled to lead defence witness and therefore if he requested, the trial Court should have issued summons to the defence witnesses. It appears that the learned Magistrate did not properly appreciate the legal provisions and refused that right to the accused. That mistake was rectified by the impugned order passed by the Addl. Sessions Judge. In view of this, the order passed by the Sessions Court was perfectly correct and in consonance with the legal provisions.

Therefore, the petition stands dismissed.