S.K. Kader, J.
1. At a trial held in the Court of Session, Quilon, Janardhanan Pillai aged 28, the appellant herein, was convicted Under Section 302, I.P.C, and sentenced to imprisonment for life. It was for intentionally causing the death of Visalakshan Pillai aged 27 by stabbing him on his right chest with a dagger that he was convicted and sentenced as aforesaid. The occurrence in the case was at about 2 a.m. on the night between 9th and 10th Jan. 1979. The scene of offence Is said to be the steps leading from the northern Gopuram of Thirunettarakkavu Bhagavathi Temple in Mavanakkonam Cheri of Kallavathukkal Village within the limits of chathannoor Police Station. There was a Bajana festival going on in that temple on the night of occurrence. Till about 9 p.m. there were Bajana songs in the temple and thereafter two dramas were staged at the adjacent compound of the temple on the western side. The stage where these dramas were enacted was facing north. Ropes were tied separating and demarcating the places where women and men were sitting. Women were sitting on the western side of the stage. At about 10-30 p.m. the appellant came to the place where women were sitting and created some commotion. P.Ws. 1 and 5 and Visalakshan Pillai forcibly removed the appellant from there, took him away to the western pathway leading to the paddy field and from there, Visalakshan Pillai gave the appellant a blow and issued a warning that he should leave the place immediately and he should not be seen anywhere there. The appellant wanted to return the blow but that was prevented by P.Ws. 1 and 5. The appellant then left the place giving a threat against the deceased that he would retaliate. At about 2 a.m. Visalakshan Pillai went to pass urine. He had to pass through the steps to pass urine from underneath the tree where he was sitting. On seeing this, the appellant followed him and at the scene of offence, overtook him and standing in front of Visalakshan Pillai inflicted a stab on the right front of his chest causing an injury, On receiving the stab Kisalakshan Pillai, crying that Janardhanan Pillai stabbed him fell down on the southern side of the Kalithattu, P.Ws. 1, 2 and 3 came running to the place and the injured was removed in a car to the Government Hospital, Quilon. But on the way Visalakshan Pillai succumbed to the injury. P.W. 1 went to the Chathannoor Police Station and laid Ex. PI, first information statement, at 4 p.m. on 10-1-1979, and a case was registered on that basis by P.W. 12, Sub-Inspector of Police. After due investigation, P.W. 13, Circle Inspector of Police, laid a charge-sheet against the accused.
2. When examined on the prosecution evidence, the plea of the appellant was one of denial. He stated that he is innocent; that P.Ws. 1 to 3 are related to each other and that the witnesses are giving false evidence. A written statement also was filed on 17-3-1980 by the appellant,
3. The learned Sessions Judge on a due consideration of the prosecution evidence finding the prosecution evidence reliable, convicted and sentenced the appellant as aforesaid.
4. At the time when this appeal was taken up for hearing, the learned advocate appearing for the appellant submitted that he was not going to argue the case on merits, as according to him, the whole trial has been vitiated because of the violation of the mandatory provisions in Section 233(1), Cr.P.C. and the appellant has been seriously prejudiced thereby. The counsel submitted that the provisions ixi Section 233(1) are mandatory; that this is a valuable right given to the accused and that, although the appellant was defended, in view of the fact that the provision in this Sub-section (is mandatory, the trial Judge ought to have reminded the appellant and called upon him whether he wanted to adduce any evidence. The counsel therefore requested that the case may be remanded to the trial Court to give an opportunity to the appellant to adduce evidence in support of his plea. It was also submitted that this is not a case where the appellant or his counsel submitted that they are not examining any defence witness,
5. The learned Public Prosecutor appearing on behalf of the State submitted that although it cannot be said that the provisions in Sub-section (1) of Section 233 Cr.P.C. have been fully complied with, no prejudice has been caused to the accused,
6. Section 232 of the present Code corresponds to Section 289(2) and (3) of the old Code; while Section 233 corresponds to Section 289 of the old Code. Section 289(1) of the old Code reads:
When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded, the accused shall be asked whether he means to adduce evidence.
Section 233(1) reads:
Where the accused is not acquitted Under Section 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
The provision in Sub-section (1) of Section 233, Cr.P.C. is undoubtedly a very salutary provision which is mandatory in nature and intended to protect the interests of the accused person. Under this provision, an accused person is entitled to be reminded of his right to adduce evidence in support of his plea. The counsel for the appellant is right in his submission that the latter part of the mandatory provision in Sub-section (1) of Section 233, Cr.P.C. has not been complied with by the trial Court, as revealed from the judgment and the records available in the case. There is nothing on record to show that the trial Court has called upon the appellant to adduce any evidence he may have in support of his plea. Under Section 233(1), Cr.P.C. there is a duty cast on the trial Court to call upon the appellant to enter on his defence and adduce evidence, he may have in support thereof. It was submitted on behalf of appellant that the violation of the mandatory provision in Section 233(1) has resulted in serious prejudice in the conduct of the defence of the appellant and a valuable right thereunder conferred on him has been denied him. That the accused should be called upon to enter on his defence and adduce evidence he may have in support of his plea is mandatory is clear from the language of the Sub-section (. This is an important rule relating to the trial of a Sessions Case and it is an essential part of criminal trial. The procedure prescribed in this Sub-section (is not an idle formality. Whether the accused would have given an answer or not, it was the duty of the Sessions Judge to have put this question to him. Omission to put this question occasions failure of justice. In the absence of full and effective compliance of the mandatory provisions in Section 233(1), it cannot be said that the appellant has not been prejudiced in the conduct of his defence. In the circumstance it is only just and proper that the appellant should be given an opportunity to adduce defence evidence, if any, in support of his plea. The argument raised by the learned Public Prosecutor that in the light of what the appellant stated Under Section 313, Cr, P. C. and in the written statement no useful purpose will be served by giving an opportunity to the accused to adduce evidence is a point to be borne in mind by the trial Judge while evaluating defence evidence, if any adduced.
7. In the result, without going into the merits or demerits of the prosecution evidence, we set aside the conviction and sentence passed against the appellant and send back the case to the Court of Session, Quilon, for retrial from the stage of Section 233, Cr.P.C. after duly complying with Sub-section (1) of Section 233, Cr.P.C.
8. It is submitted on behalf of the appellant that he was on hail during the trial and that this Court be pleased to direct that he might be released on bail.
9. The appellant will therefore be released on bail during the pendency of the trial, on his executing a bond for Rs. 5,000 with two sureties each in the like sum to the satisfaction of the Sessions Judge, Quilon.
10. The learned Sessions Judge is directed to dispose of this case within one month from the date of receipt of records in the case by that court.