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2003 DIGILAW 1569 (PNJ)

Mohammad Isha v. State of Haryana

2003-11-17

M.M.KUMAR

body2003
JUDGMENT M.M. Kumar, J. - This petition filed under Section 401 of the Code of Criminal Procedure, 1973 (for brevity the Code) by the defendant-accused challenges order dated 13.9.2003 passed by the Additional Sessions Judge, Kurukshetra remanding the case to the Magistrate on the ground that the Magistrate has committed an error in recording the statements of the defendant-accused under Section 313 of the Code which has resulted in prejudice to the defendant- accused. 2. Brief facts of the case necessary for disposal of the instant petition are that an FIR No. 84 dated 15.4.1993 was registered against the defendant- accused under Sections 279/337/338/304-A of the Indian Penal Code at Police Station Shahbad levelling allegations that the defendant-accused who was the driver of bus bearing No. RJ-14P-1835 belonging to Rajasthan Roadways had driven the bus in rash and negligent manner with a high speed. It rammed into one Bullet Motorcycle bearing No. HRD-759 from back side which resulted into the death of one person who was pillion rider on Bullet Motorcycle. After trial, the Magistrate found the accused guilty of offences punishable under sections 279/304-A of the Indian Penal Code. The defendant-accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 500/- along with other punishments. Feeling aggrieved, the petitioner filed an appeal before the learned Additional Sessions Judge, Kurukshetra who has ordered the remand of case on account of serious error committed in recording the statement of the defendant-accused under section 313 of the Code. The view of the learned Additional Sessions Judge is discernible from the operative part of the impugned order, which reads as under :- "19. What has been done in the present case by the learned trial court while recording the statements of the appellants/accused under section 313 of the Code of Criminal Procedure practically negates the very purpose of recording of such statement; instead of putting simple and separate questions of the circumstances relied upon by the prosecution, the learned lower Court framed one composite and all pervasive question rolling in it many incriminating circumstances against the accused but without explaining the same. Practically the total evidence brought by the prosecution against the accused has been put in one question. Practically the total evidence brought by the prosecution against the accused has been put in one question. When translated in English, the said question reads as under: "It has come in evidence against you that you had come in bus No. RJ-14P-01835 with an a high speed and in a rash and negligent manner and rammed into one motor cycle bearing No. HRD-759 from back side which was driven by Hardayal Singh and Gursharan Singh was sitting behind him and you had hit him near village Teora. Gursharan died on the spot. This accident took place due to your rashness and negligence. About which statement Ex. PA was recorded by the police on police proceedings Ex. PA/1 were conducted upon which formal FIR EX. PA/2 was registered. Site plan EX. PB was prepared. Motor cycle and bus were taken into police possession vide recovery memos Ex. PC and Ex. PD. Memos and documents were also taken into police possession vide recovery memos Ex. PE and Ex. PJ. Statements of witnesses were recorded and accused was arrested in this case. On completion of investigation challan was prepared by SI/SHO Kaptan Singh." 20. Not only this all the documents put by the prosecution in evidence against the accused without explaining their contents and incriminating material against the accused have been put as such with their exhibit marks. Without nature of the document put to the accused, no useful purpose is likely to be achieved when neither incriminating circumstances were explained nor brief contents of the documents have been put to the accused. 21. Had the details with exhibit numbers been given, the appellant/accused could have understood the nature of the documents. The documents and circumstances incriminating the accused thus could have been appreciated in the sense in which such circumstances were sought to be conveyed to the accused. 22. Even though the accused has led his defence evidence but all the matters have been jumbled up. No wonder, the incriminating material put to him is not being understood without supporting explanation. Many of the incriminating circumstances have been omitted out and completely to be put in statement under section 313 Criminal Procedure Code though the same have been relied upon by the learned lower court. 26. No wonder, the incriminating material put to him is not being understood without supporting explanation. Many of the incriminating circumstances have been omitted out and completely to be put in statement under section 313 Criminal Procedure Code though the same have been relied upon by the learned lower court. 26. As a sequel to the discussion as above, accepting the appeal setting aside the impugned judgment of conviction and order of sentence, the case is sent back to the court of Shri Sanjiv Arya, the learned Judicial Magistrate, Kurukshetra for examination of the appellant/accused under section 313 Criminal Procedure Code afresh as per law. Each and every circumstance appearing in the evidence of the prosecution would be distinctly and separately put to the appellant/accused to provide an opportunity to him to explain the same. The appellant/accused would also be entitled to lead evidence in his defence. 3. Shri Ashit Malik, learned counsel for the defendant-accused has argued that the petitioner has been facing the trial sine 1993 and by remanding the case on account of error committed in recording the statement of the defendant- accused under section 313 of the Code, his agony has been increased manifold. According to the learned counsel, the learned Additional Sessions Judge should have acquitted the defendant-accused instead of multiplying his agony by passing an order recording a statement under section 313 of the Code afresh. In support of his submission, the learned counsel has placed reliance on the judgments rendered in the cases of Sriramulu v. State of Tamil Nadu through Sub Inspector of Police, 2000(4) RCR(Crl.) 593, Dr. Jaswinder Kaur v. State of Punjab and another, 2001(2) RCR(Crl.) 58, Avtar Singh v. State of Punjab, 2002(4) RCR(Crl.) 180, Subhash Chand v. State of Rajasthan, 2001(4) RCR(Crl.) 496. 4. Shri G.P.S. Nagra, learned State counsel has pointed out that the error committed in recording the statement under section 313 of the Code is by the Magistrate and the defendant-accused cannot claim acquittal on that account because prosecution has brought on record overwhelming evidence to substantiate the charge. The learned State Counsel has further pointed out that the prolongation of trial by itself is no ground to claim acquittal. The learned State Counsel has further pointed out that the prolongation of trial by itself is no ground to claim acquittal. For the afore-mentioned proposition, he has placed reliance on a judgment of this court in the case of Shayami v. State of Haryana, 1987(1) RCR(Crl.) 673 and further argued that each case has to be seen on its own facts and no general principles of universal application could be laid down. 5. After hearing the learned counsel and perusing the record, I find that this petition deserves to be dismissed because it is the primary duty of the trial court to examine an accused under Section 313 of the Code by putting him all such questions which may enable the accused to explain any circumstances appearing in evidence against him. The stage of granting opportunity under section 313 of the Code is significant as it allowed a direct dialogue between the court and the accused for the purpose of enabling him to give his explanation without attracting any prejudice on the basis of his statement. It is also appropriate to mention that it was on the basis of the argument raised by the defendant accused that remand order has been made. The learned Additional Sessions Judge in para 15 of this judgment has noticed that "during the course of arguments, learned counsel for the appellant has vehemently argued that the appellant-accused could not properly gather as to which incriminating material had come against him and which he was required to meet and explain." Had the defendant-accused not raised the afore-mentioned argument or the defendant-accused had assured that he would not complain about any prejudice on the ground of error in the statement recorded by the Magistrate under Section 313, then the position in law would have been different as the defendant-accused could have been granted benefit of the judgment of the Supreme Court in Chandu Lal Chandrakar v. Puran Mal, 1988 (Suppl.) SCC 570. Section 313 of the Code reads as under :- "313. Power to examine the accused. Section 313 of the Code reads as under :- "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. (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 offence which such answers may tend to show he has committed." 6. A perusal of the afore-mentioned section shows that in summons cases, the examination of the accused can be dispensed with where his personal attendance has also been dispensed with. However, in cases where such a power has not been used and the Magistrate has gone ahead with the recording of the statement, then it cannot be said that the accused-petitioner was entitled to seek exemption from the statement recorded under Section 313 of the Code. It is true that the present case is a summons case, but nothing has been placed on record to show that the Magistrate has exempted the accused-petitioner from personal appearance under section 205 of the Code. It is well settled that once a statement under Section 313 of the Code is recorded, then all the material circumstances appearing in evidence have to be put to the accused so as to enable him to say in his defence whatever he wants to or explain those circumstances. The general questioning of the accused by observing that he had heard the prosecution evidence and what he has to say about it, would be non-compliance of Section 313. The general questioning of the accused by observing that he had heard the prosecution evidence and what he has to say about it, would be non-compliance of Section 313. For the afore-mentioned proposition, reliance could be placed on the judgments of the Supreme Court in the case of Ajit Kumar v. State of Bihar, 1972(2) SCC 451 and Kaur Sain v. State of Punjab, 1974(3) SCC 649 and Balwant Kaur v. U.T. Chandigarh, 1988(1) SCC 1 : 1988(1) RCR(Crl.) 60 (SC). I also find substance in the argument raised by the leaned State counsel that mere prolongation of trial on count of remand is no ground for acquittal. The defendant-accused had raised the argument of prejudice before the learned Additional Sessions Judge and in order to rectify the error in recording the statement under section 313 of the Code, remand was necessitated. Therefore, the instant revision is liable to be dismissed. For the reasons recorded above, this revision fails and the same is dismissed. Revision dismissed.