The court has the power to remand a case for a fresh trial if there is a fatal irregularity in the trial proceedings, such as the non-exhibition of a statement under Section 164 CrPC.

The appellant having been convicted for an offence under section 302 of the Indian Penal Code after finding him guilty has been ordered to undergo sentence of rigorous imprisonment for life. This appeal has been filed by him against the order of the Addl Sessions Judge, Kamrup, Guwahati in Sessions CaseNo.232(K)/95.

2. The prosecution story as has been unfolded in the First Information Report and the evidence brought on the record of the case, in short, is that the appellant-husband has burnt his wife alive by pouring kerosene oil on the night of 9.9.95 at about 10.30PM after a quarrel ensued between the two. She died on the next day at 5 AM. The prosecution has produced as many as 7 witnesses in order to bring home the guilt to the accused. The Addl Sessions Judge has primarily recorded the order of conviction on the sole testimony of maid servant (PW 5) Kantibala Roy who is alleged to have seen the entire occurrence.

3. The learned counsel for the appellant Shri JM Choudhury, a Senior Advocate at the very outset has strenuously argued that the conduct of the investigating agency in the instant case was not fair inasmuch as the-sole eye witness was kept under detention for a period of two days before leading her to the Court of Magistrate for recording the statement under section 164 of the Criminal Procedure Code. He has further argued that the sole eye-witness did not disclose at the earliest opportunity that it was the appellant who committed the prime. The counsel has argued several other points. However, we do not intend to refer to the detailed submissions of the counsel as we intend to remand this case for the simple reason that the statement of the sole eye-witness under section 164 of the Criminal Procedure Code has remained unexihibited. The maid servant did appear in the witness box as PW 5 as has been noticed above, but her statement under section 164 CrPC having remained unexhibited, we are of the view that the present is one of the few cases which need be remanded to the Court of Addl Sessions Judge for the reasons to be recorded in the latter part of the judgment.

4. There cannot be any dispute with the proposition of law that it is the prosecution which is under legal obligation to get the statement under section 164 CrPC exhibited after summoning the concerned Magistrate, but we hasten to add that the Court of Sessions is also not absolved of its duty to record such a statement of an important witness. Even if the prosecution was negligent in summoning the Magistrate, the Court had sufficient power to summon the Magistrate as a Court witness in order to straighten the record and in order to make up its mind whether such a statement under section 164 CrPC could be relied upon or not. The prosecution may, in the ordinary course, not examine an ordinary witness and the Court in such a situation would hardly be concerned to order the examination of such a witness. But when a witness happens to be a Magistrate before whom sole eye witness has appeared at the earliest opportunity, such an important witness, in our considered view, should have been examined by the Court of Sessions. Where there is a statement under section 164 of the Criminal Procedure Code, whether it be of an eye witness or a confessional statement of the accused, the same, in our considered view, must be exhibited even if the Court of Sessions has to summon the Magistrate as a Court witness. The case in hand pertains to non-exhibition of the statements of an eye witness. In another given case the Court of Sessions may not exhibit the confessional statement of an accused by remaining a silent spectator. The Court of Sessions while trying a case which is triable by it only has to be vigilant about the record of the case and as to what is the case of prosecution and defence. As to what evidentiary value has to be attached to such a statement under section 164 CrPC, it is for the Court of Sessions to see in a particular given case. The sta