S. K. TIWARI, J. ( 1 ) THIS appeal is directed against the conviction and sentence, dated 14th August, 1997, recorded by ld. 3rd. Additional Session Judge, Midnapore, in Session Trial No. 34 of 1993. ( 2 ) THE appellant Abdul Khalek and 6 others were charge-sheeted by the Police under sections 148, 302/149,307/149,326/149 and 324/149 IPC for having committed the offences of riot, murder by intentionally causing the death of Sk. Mobarak Ali in furtherance of common object of an unlawful assembly, attempt to commit murder of Jahanara Begum and voluntarily causing grievous hurt to Jahanara Begum and etc. The accused persons pleaded not guilty to the charges. ( 3 ) THE prosecution case was closed on 21st May, 1997. The accused persons were examined under section 313 Cr PC on the same day. The case was posted for 4th June, 1997, for recording defence witnesses. On that day no defence witnesses were present. The case was thereafter taken upon on 4th August, 1997, and one D. W. was partly examined. His examination-in-chief was deferred and the case was fixed for 14th August, 1997. On 14th August, 1997 when the case was called, the accused persons were present but the learned Public Prosecutor as well as the defence lawyer were absent. An application was filled on behalf of the accused persons for grant of adjournment to produce other defence witnesses. The learned session court not only rejected the application but closed a defence case. He did not call upon the Public Prosecutor to sum-up his case, as per provisions of section 234 Cr PC which reads thus:-"when the examination of the witnesses (if any) for the defence is complete, the prosecutor shall sum up his case and the accused or his pleader shall be entitled to reply:provided that where any point of law is raised by the accused or his pleader, the prosecution may, with the permission of the Judge, make his submissions with regard to such point of law. " ( 4 ) THIS provision is mandatory. The learned trial court overlooked it and acted in hot-head. ( 5 ) THE learned trial court acquired all the accused and convicted the appellant alone under section 302 IPC for having committed murder of Mobarak Ali. " ( 4 ) THIS provision is mandatory. The learned trial court overlooked it and acted in hot-head. ( 5 ) THE learned trial court acquired all the accused and convicted the appellant alone under section 302 IPC for having committed murder of Mobarak Ali. ( 6 ) LEARNED counsel for the appellant has invited our attention to the case reported in 1993 (1) Cr LJ 1387 (Subarn alias Subramanian v. State of Kerala), wherein a three Judges Bench of the apex court laid down that the accused persons who have been charged under section 302 IPC read with section 149 cannot be convicted of the substantive offence under section 302 IPC. Conviction for substantive offence is unjustified because an accused might be misled in his defence in absence of a specific charge under section 302 IPC. ( 7 ) IN the light of the aforesaid infirmities, the conviction and sentence recorded by the trial court cannot be allowed by stand. The appeal is, therefore, allowed. The conviction and sentence recorded against the appellant are hereby set aside and the matter is remanded back to the trial court with the following directions:- (I) To frame a specific charge under section 302 IPC against the appellant; (II) To recall such of the prosecution witnesses whom the appellant desires to be recalled for further examination. (III) To re-examine the appellant under section 313 Cr PC and call upon him to enter upon his defence; and (IV) To dispose of the case after hearing the prosecution as well as the defence. Since the appellant remained on bail during the trial, the learned trial court shall enlarge him on bail, if he furnishes fresh bail and bonds on the same terms and conditions as prevailed earlier. V. Nand, J.-I agree. Appeal allowed