JUDGMENT - Dr. (Smt.) PRATIBHA UPASANI, J.:---This criminal revision application is filed by the original accused Nos. 1, 3, 4, 5, 6 and 7, assailing the Judgment and Order dated 26th April, 2000, passed by the Additional Sessions Judge, Mapusa, in Criminal Appeal No. 5/99. By the impugned Judgment and Order the Additional Sessions Judge, quashed and set aside the Judgment and Order passed by the Judicial Magistrate, First Class at Mapusa dated 14th January, 1999 and remanded the matter to the trial Court with a direction to re-frame the charge or explain the substance of accusation, as the case may be and proceed in accordance with law. The applicants were directed to appear before the trial Court on 6th May, 2000. The applicants, however, approached this Court by way of filing the present Criminal Revision Application. 2.It is the contention of the applicants that the impugned Judgment and Order of the learned Additional Sessions Judge suffers from material irregularity and hence, has to be set aside. It is submitted by Mr. Sardessai, appearing for the applicants, that the applicants were charged under sections 143, 147, 148, 323, 504 and 427 read with section 149 of the Indian Penal Code. He then proceeded to point out that none of these sections mandatorily inflict incarceration in jail and that the trial Court is endowed with the discretion to award, on conviction, either imprisonment of either description or fine, or both. Highlighting this, Mr. Sardessai submitted that in view of this clear position, as far as the abovementioned sections are concerned, the observation of the learned Additional Sessions Judge that the offences under sections 143, 147, 148, 323, 504 and 427 are offences wherein imprisonment is compulsory, is erroneous. He submitted that imprisonment is not at all compulsory, if the accused is found guilty of having committed offences enumerated in the abovementioned sections, but that on conviction the Magistrate can, either award the sentence of imprisonment of either description, or award the sentence of fine, or both, thus making it optional depending upon the merits of the case. 3.The next submission of Mr. Sardessai is that the observation of the learned Additional Sessions Judge about the mandatory nature of recording the statement under section 313 of the Criminal Procedure Code, 1973, when the case is a summons triable case, is not correct. 3.The next submission of Mr. Sardessai is that the observation of the learned Additional Sessions Judge about the mandatory nature of recording the statement under section 313 of the Criminal Procedure Code, 1973, when the case is a summons triable case, is not correct. He argued that the learned Additional Sessions Judge in para 8 of the impugned Judgment and Order has made erroneous observations with respect to statements recorded under section 313 of the Criminal Procedure Code, 1973. Pointing out para 9 of the impugned Judgment, Mr. Sardessai submitted that the conviction of the applicants under section 148 of the Indian Penal Code was set aside by the learned Additional Sessions Judge, which was the only section where the applicants could be punished with imprisonment of either description for a term extending to three years, or with fine, or with both, thus, requiring warrant procedure for the trial. He further argued that by quashing the charge under section 148, the remaining charges, if proved, were of a nature which would invite punishment of less than two years, thus making them summons triable cases. 4.Mr. Sardessai then drew my attention to section 313 of the Criminal Procedure Code, 1973, specially the proviso to sub-clause (1)(b) of the same. He argued that in a summons triable case, when the Court has dispensed with the personal attendance of the accused, the Court also has discretion to dispense with the examination under section 313 of the Criminal Procedure Code, 1973, of the accused. He submitted that in the present case at hand, the personal attendance of the appellants was dispensed with by the Magistrate, the trail was a summons triable case and, therefore, the Magistrate, in view of the proviso to the sub-clause (1)(b) of section 313 of the Criminal Procedure Code had discretion to also dispense with the recording of statement under section 313. He submitted that the learned Additional Sessions Judge, therefore, wrongly came to the conclusion that eventhough the case was a summons triable case and eventhough personal attendance of the applicant-accused was dispensed with the statement of the applicants under section 313 of the Criminal Procedure Code, 1973, had to be mandatorily recorded. He submitted that the learned Additional Sessions Judge, therefore, wrongly came to the conclusion that eventhough the case was a summons triable case and eventhough personal attendance of the applicant-accused was dispensed with the statement of the applicants under section 313 of the Criminal Procedure Code, 1973, had to be mandatorily recorded. He further argued that the intention behind enacting section 313 of the Criminal Procedure Code was to enable the accused to personally explain any circumstance appearing against him in the prosecution evidence and that this provision is for the benefit of the accused. He further submitted that the applicants themselves have got no grouse against dispensing with this provision and when the proviso to sub-clause (b) of section 313 specifically provides that such dispensation of examination under section 313 of the Criminal Procedure Code can be done in summons triable case when the personal attendance of the accused has already been dispensed with by the Magistrate, the learned Additional Sessions Judge erroneously ordered remand of the matter for wrong reasons citing non-recording of statements under section 313 of Criminal Procedure Code as one of the reasons. 5.I find force in the submissions of Mr. Sardessai. Section 313 of the Criminal Procedure Code lays down the procedure as to recording the statement of the accused in every enquiry or trial. It reads as follows:--- "Section 313:---Power to examine the accused- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case : Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under Clause (b). (2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) the answers given by the accused may be taken into consideration in such inquiry or trial and put in evidence for or against him in any other inquiry into, or trial for, any other offences, which such answers may tend to show he has committed." 6.What is important for our purpose is the proviso to sub-clause (1)(b) which states that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under the proviso to sub-clause (b). 7.In the present case, admittedly, the Magistrate had, in fact, dispensed with the personal attendance of the original accused Nos. 3, 5 and 6 as per the provisions of section 205 of the Criminal Procedure Code, 1973. After prosecution evidence was recorded he put the question to the Advocate for the accused and the Advocate for the accused stated that he had nothing to say as far as the statement under section 313 of the Criminal Procedure Code was concerned. Since the case tried as a summons triable case, the learned Magistrate was within his discretion to also dispense with the examination of the accused as per the proviso to sub-clause (b) of section 313 of the Criminal Procedure Code. I am, therefore, in agreement with submissions made by Mr. Sardessai that the learned Additional Sessions Judge committed error in remanding the matter on this ground. 8.The learned Additional Public Prosecutor supported the Judgment and Order of the learned Additional Sessions Judge pointing out the provisions of section 313 of the Criminal Procedure Code and the intention of the Legislature in enacting the same. 9.Having heard both the Advocates and after going through the proceedings, in my opinion, there is indeed material irregularity committed by the learned Additional Sessions Judge in ordering the matter to be remanded with a direction to reframe the charges against the applicants. Hence, the following Order:- The Criminal Revision Application No. 38/2000 is allowed in terms of prayer Clause (a). The judgement and Order of the learned Additional Sessions Judge, Mapusa, dated 26th April, 2000, is quashed and set aside. Hence, the following Order:- The Criminal Revision Application No. 38/2000 is allowed in terms of prayer Clause (a). The judgement and Order of the learned Additional Sessions Judge, Mapusa, dated 26th April, 2000, is quashed and set aside. Prayer Clause (a):---This Honourable Court be pleased to call for the records and proceedings before the Additional Sessions Judge, Mapusa in Criminal Appeal No. 5/99 and Judicial Magistrate First Class, Mapusa, in Criminal Case No. 20/96/SR(I) and after persuing the orders dated 26-4-2000 and 14-1-1999 respectively, to quash and set aside the same. Civil Revision Application allowed. -----