Full Judgment
J.N. Dubey, J.
1. This revision is directed against the order dated 2nd September, 1986 of the 1st Additional Sessions Judge, Begusarai.
2. The case of the prosecution in brief is that on 21st April, 1982 at about 4.36 p.m. B.P. Ambastha, Labour Superintendent-cum-Labour Inspector visited the grocery shop of the applicant at Mungeriganj, Begusarai and found his shop open although it was a weekly holiday. The applicant, who was transacting business, with the customers, was asked to produce the relevant registers for inspection but he refused to do so.
3. The applicant was, accordingly, tried by the Sub-Divisional Judicial Magistrate, Begusarai under Section 34 of Bihar Shops and Establishment Act, 1953, for violating the provisions of Sections 12(I) and 33(I) and (II) of the Act. On his coming to the conclusion that the prosecution has succeeded in proving its case beyond reasonable doubt convicted the applicant under Section 34 of the Act and sentenced him with a fine of Rs. 250 and in the event of default to under go S.I. for one month. The applicant filed appeal to the Sessions Judge, Begusarai which was allowed by 1st Additional Court for deciding it afresh in accordance with law. Feeling aggrieved the applicant has filed this revision.
4. Heard the learned Counsel for the parties and perused the record.
5. Learned Counsel for the applicant contended that the appellate court was not legally justified in remanding the case to the trial Court on the ground that the date of incident in the question put to the applicant under Section 313, Cr PC was different than the actual date of incident.
6. In order to appreciate the argument of the learned Counsel the statement of the applicant recorded under Section 313, Cr PC is reproduced below:
Prashan 1.-Kaha Jata Hai Awam Sakchhiyo Ka Beyan Hai Ki Dinank 1-4-1982 Ko 4-36 Baje Sandhya Me Shram Nirikshak Ke Janch Kiam Me Apki Dukan Bandi Ke Din Khuli Thi Awam Dukan Me Dharit Rejister Mang Karne Par Aapne Use Nahi Dikhaya. Keya Kahna Hai?
Uttar 1.-Ji Nahi, Dukan Band Thi.
Prashan 2.-Safayee Me Kuchh Kahna Hai?
Uttar 2.-Galat Aarop Hai.
It is true that in question No 1 the date of incident was mentioned as 1-4-1982 instead of 21-4-1982, but after going through the entire statement I find that no prejudice was caused to the application this account. The fact that in question No. 11-4-1982 instead of 21-4-1982 was written through some inadvertence was of no legal consequence unless it was proved that the applicant could not give proper reply of the question for this reason. It is relevant to point out here that no such grievance was made by the applicant before the appellate court. For that reason also this could not be a ground for remanding the case to the trial Court. Moreover, even assuming that it was necessary to re-examine the applicant under Section 313, Cr. PC for some reason the appellate Court could have done it itself instead of remanding the trial Court for the purpose.
7. The order of the appellate court is wholly illegal and is liable to be set aside.
8. In the result the revision succeeds and is allowed. The order of the appellate court is set aside and it is directed to decide the appeal of the applicant afresh in accordance with law with in three months from the date of production of a certified copy of this order before it.