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Uttarakhand High Court · body

2005 DIGILAW 237 (UTT)

Ranveer Singh v. State of Uttaranchal

2005-07-07

J.C.S.RAWAT

body2005
Judgment 1. This is a criminal revision against the judgement and order dated 31-5-2005 passed by Sri R.R. Agarwal Sessions Judge Nainital in criminal appeal no.30 of 2004 whereby he allowed the appeal and set aside the order dated 1-12-2004 of Judicial Magistrate, Haldwani and remanded back the case to the trial court to proceed with the case from the stage of recording the statement of the accused u/s 313 Cr.P.C. 2. The prosecution case, in brief, is that the revisionist was an employee in HMT factory Ranibagh and on 4-3-1993 at 6.30 p.m. balance wheel 2622 weighing 256.5 grams amounting to Rs. 4500/- was recovered from his possession. He was tried by the Judicial Magistrate, Haldwani and after appraisal of evidence on record the revisionist was convicted and sentenced to two years RI under sections 380 and 411 IPC under each count vide judgement and order dated 112-2004. Feeling aggrieved the revisionist filed the appeal before the Sessions Judge, Nainital and the learned Sessions Judge passed the impugned order as mentioned above. 3. I have heard the learned counsel for the revisionist as well as learned AGA and perused the record. 4. It was contended on behalf of the revisionist that the learned Sessions Judge has allowed the appeal of the revisionist and set aside the order dated 1-12-2004 of the learned trial court and he not only set aside the conviction of the revisionist but allowed the appeal in toto. Learned counsel for the revisionist further contended that the learned Sessions Judge while allowing the appeal committed error in remanding back the case to the trial court and contended that the learned Sessions Judge while recording the finding has not gone through the merit of the case. The learned Sessions Judge has held that the trial court has recorded the statement of the revisionist under section 313 Cr.P.C. in a mast cursory, casual and perfunctory manner and as such the case was remanded back to the trial court only to. record the statement of the revisionist under section 313 Cr.P.C. and thereafter to take the evidence of the defence. record the statement of the revisionist under section 313 Cr.P.C. and thereafter to take the evidence of the defence. It was further contended by the learned A.G.A. that the learned Sessions Judge has only set aside the conviction, and allowed the appeal and remanded back the case far recording the statement of the revisionist under section 313 Cr.P.C. It was further contended that the learned Sessions Judge has not afforded any opportunity to the prosecution to adduce the evidence in support of its case. 5. The basic concept 'and abject of section 313 Cr.P.C. is only to. afford opportunity to. the accused to explain the circumstances appearing in evidence against him. It is enacted far the benefit of the accused. The mandate of section 313 Cr.P.C. is imperative with no. exception. It is well settled position of law that nevertheless fundamental, that the accused is attention should be drawn to every inculpatory material so as to able him to. explain it. Failure In this area may gravely imperil the validity of the trial Itself and sometimes consequently miscarriage of justice Is caused. However where such an exception does not ipso-facto. vitiate the proceeding and prejudice the occasion by such defect, must be established by the accused. In the present case the learned Sessions Judge found that the statement of the accused u/s 313 Cr.P.C. has been recorded cursorily and every Inculpatory material has not been put to the accused and he remanded back the case to the trial court and directed to proceed further from the stage of section 313 Cr.P.C. to. onward. However no. option has been given to the prosecution to adduce the evidence. The other course was open to the learned Sessions Judge to call upon the counsel far the accused to show what explanation the accused has given with regard to the circumstances established against him and the learned Sessions Judge instead of remitting back the case to. the trial court could have disposed of himself but the learned Sessions Judge has adapted to. send it back to. the trial court. (See Shivaji Sahabrao Bobade Vs. State of Maharashtra, (1973) 2 SCC 793 and Basavaraj R. Patil v. State of Karnataka, (2000) 8 SCC 740). 6. the trial court could have disposed of himself but the learned Sessions Judge has adapted to. send it back to. the trial court. (See Shivaji Sahabrao Bobade Vs. State of Maharashtra, (1973) 2 SCC 793 and Basavaraj R. Patil v. State of Karnataka, (2000) 8 SCC 740). 6. It is well settled position of law that if any appellate court or the revisional court comes across that the trial court had not put any question to an accused even if it is of a vital nature, such omission alone should not' result in setting aside the conviction and sentence as' an inevitable consequence. Effort should be made to undo or correct the lapse. If it is not possible to correct it by any means the court should then consider the impact of the lapse an the overall aspect of the case. After keeping that particular item of evidence aside, if the remaining evidence Is sufficient to. bring home the guilt of the accused, the lapse does not matter much, and can be sidelined justifiably. But if the lapse is so vital as would affect the entire case, the appellate or revisional court can endeavour to see whether It could be rectified. The learned counsel far the revisionist has relied upon the decision of the Apex Court in 2000 (41) page 1013, Basavaraj R. Patil v. State of Karnataka (S.C.) In which the statement of the accused u/s 313 Cr.P.C. was not recorded and the physical presence of the accused was dispensed. The case was a warrant trial and the trial court acquitted the accused. The said order was challenged before the High Court and the learned single Judge set aside the conviction and remanded back the case for recording the statement u/s 313 Cr.P.C. The matter was challenged before the Apex Court and the Hon'ble Supreme Court upholding the order of the leaned Magistrate held that section 313 Cr.P.C. has been enacted only for the benefit of the accused. The majority view taken by the Hon'ble Supreme Court maintained the order of the learned Single Judge and remanded back the case to the trial court and laid down the procedure how an accused who is not appearing before the court the statement under section 313 Cr.P.C. can be recorded. The majority view taken by the Hon'ble Supreme Court maintained the order of the learned Single Judge and remanded back the case to the trial court and laid down the procedure how an accused who is not appearing before the court the statement under section 313 Cr.P.C. can be recorded. As such the law laid down in the said pronouncement that a case can be remanded back for recording the statement of the accused u/s 313 Cr.P.C. to the trial court. In the second judgement, 2005 Supreme Court Cases (Cri.) 113 Parsuram Pandey and others Vs. State of Bihar which has been relied upon by the lower appellate court, the appellant has not raised the question of improper recording of statement u/s 313 Cr.P.C. before the first appellate court and the High Court. The matter was taken up first time before the Supreme Court and the Apex Court has observed that the appellant could not point out to them that any prejudice was being caused to the appellant on account of the irregular, imperfect statement recorded u/s 313 Cr.P.C. and the conviction was maintained and found that there was no lacuna in recording the statements u/s 313 Cr.P.C. The appellant has taken this plea first time before the first appellate court that the statement u/s 313 Cr.P.C. was recorded in a most cursory, casual and perfunctory manner and as such the learned Sessions Judge remanded the case to the trial court. 7. The learned Sessions Judge has made certain observations against the trial court. The Apex Court in the case of State of West Bengal and others, v. Babu Chakraborty, AIR 2004 Supreme Court 4324 has held as under :- "In our view, the High Court was not justified and correct in passing observations/strictures against appellants 2 and 3 without affording an opportunity of being heard, and it is in violation of catena of pronouncements of this court that harsh or disparaging remarks are not to be made against the persons and authorities whose conduct comes into consideration before courts of law unless it is really necessary for the decision of the case." In view of the above ruling the observations made by the learned Sessions Judge against the presiding officer of the trial court without affording any opportunity are expunged. 8. 8. In view of the above discussion I find no illegality in the impugned order passed by the learned Sessions Judge. 9. The revision is dismissed and the impugned order dated 31-05-2005 is sustained. The learned trial court shall proceed with the case from the stage of recording of statement of the accused u/s 313 Cr.P.C. and shall afford an opportunity to the accused to adduce his defence. The Judicial Magistrate shall take into consideration the prosecution evidence already recorded and shall decide the case expeditiously and according to law.