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2005 DIGILAW 593 (GAU)

N. Pishak Singh v. State of Manipur

2005-08-17

M.B.K.SINGH, T.NANDA KUMAR SINGH

body2005
M.B.K. SINGH, J.— This appeal is directed against the judgment and order dated 5.7.2004 passed the learned Addl. Sessions Judge, Manipur West in Session Trial No. 4 of 1991 Convicting the present appellant for the commission of the offences punishable u/s 302/364/201 of the I.P.C. 2. We have heard Mr. Th. Modhu, learned counsel appearing on behalf of the appellant and Mrs. Ch. Bidyamani Devi, learned Addl. P.P. 3. The only ground of this appeal submitted by the learned counsel of the appellant that the learned Addl. Sessions Judge; Manipur West had never called upon the accused appellant to enter on his evidence and adduce defence evidence before passing impugned judgment and order as per mandatory provisions of Section 233 of the Cr.PC. and as such the impugned judgment and order is not sustainable in the eye of law. 4. As per provisions of Section 233 of the Cr.P.C., if the accused is not acquitted u/s 232 on the ground of having no evidence, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof. If the accused puts in any written statement, it shall be filed with the records. Further, if the accused desires to call any witness and apply for issue of process for compelling attendance of witnesses or production of any document or thing, it shall be granted unless the Judge thinks that the object is vexation or delay. Reasons for refusal of process must be recorded. 5. On perusal of the records, it is ascertained that the accused appellant was examined on 18.11.98 after examination of witnesses of the prosecution. When he was asked at Question No. 30 as to whether he was having any defence to be made or any defence witness to be produced, he replied in the positive and that he would produce defence witness. The learned Addl. Sessions Judge, Manipur West proceeded with hearing of argument of both sides after examination of the accused appellant u/s 313 Cr.P.C. by way of giving him opportunity to examine the Circumstances appearing in the evidence of the prosecution. In view of Section 232 Cr.P.C., the said hearing of argument ought to have been for the limited purpose of deciding if the accused appellant was to be acquitted or not. In view of Section 232 Cr.P.C., the said hearing of argument ought to have been for the limited purpose of deciding if the accused appellant was to be acquitted or not. If there were evidence as to show that the accused appellant had committed the charged offences, learned Addl. Sessions Judge ought to have proceeded u/s 233 Cr.P.C. Under Section 233 Cr.P.C., the learned Addl. Sessions Judge should have called upon the accused appellant to enter on his defence and adduce any evidence he might have in support thereof. However, the accused appellant was never called upon to enter his defence and adduce any evidence. Instead of proceeding u/s 233 of the Cr.P.C., the learned Addl. Sessions Judge, Manipur West passed the impugned judgment and order convicting the accused appellant for the said offences after the said argument which ought to have been only for the limited purpose of deciding if the accused appellant was to be acquitted or not. 6. Now the question to be considered is about the effect of non compliance of the provisions of Section 233 of the Cr.P.C. by the learned Addl. Sessions Judge, Manipur West. A Division Bench of this High Court in Lal Bihari Das & Ors. Vs. State of Tripura (1998) 4 GLT 220, approved the view taken by the Karnataka High Court in 1993 Criminal Law Journal 907 wherein it was held, inter alia : "Section 232/233 Cr.P.C. lay down the procedure to be followed by the Sessions Court in the process of trial of an accused person. It is one thing to say that the said procedure should be complied with. However, it is quite another thing to say that failure on the part of the Sessions Court to comply with the said procedure would ipso facto vitiate the conviction. The failure on the part of the Judge to call upon the accused person to enter on his defence in terms of S. 233, Cr.P.C. would not in all cases vitiate the conviction, if there are materials to indicate that no prejudice whatsoever has been caused to the accused. In other words, if on the facts of a particular case, no prejudice can be said to have been caused on account of the failure to comply with the procedure as laid down under S. 233 Cr.P.C. conviction cannot be said to be vitiated." 7. In other words, if on the facts of a particular case, no prejudice can be said to have been caused on account of the failure to comply with the procedure as laid down under S. 233 Cr.P.C. conviction cannot be said to be vitiated." 7. Another Division Bench of this Court followed the same principles of law in Cril. Appeal/Criminal (Jail) Appeal No. 1 of 1999 which was decided on 27.2.2004. In that case when the accused was examined after the closure of the prosecution evidence, one of the questions being Question No. 30 put to the accused was to the effect if he was having any defence witnesses to be produced and the reply given by him was in the negative. Moreover, the order sheet dated 18.6.1998 read as follows: "The accused persons are present with counsel. The accused persons are examined today. The defence counsel submits that no defence witness to be produced. Evidence concluded Fix 3.7.98 for argument." 8. In the said facts and circumstances, the Division Bench held that there was no requirement to call upon the accused to enter into defence afresh. The facts and circumstances of the said case are not similar to the present case. 9. In our present case, at the time of examination after closure of the prosecution evidence, the accused appellant is found to have stated that he was having defence to be made and that he was having defence witness to be produced. At no stage, the defence counsel is found to have stated about having no defence witness to be produced. At the stage of proceeding u/s 232 Cr.P.C., the trial Court straightway passed the impugned judgment and order convicting the accused appellant for the commission of the said offences. We are convinced that the failure on the part of the trial Court to call upon the accused appellant to enter on his defence has caused prejudice to him in his defence. The learned Addl. P.P. fails to show that the trial Judge complied with the requirements of Section 233 of the Cr.P.C. nor can she show that there are materials on record to indicate that no prejudice has been caused to the accused appellant. 10. In view of the above findings, we set aside the impugned judgment and order dated 5.7.2004 passed by the learned Addl. Sessions Judge, Manipur West in S.T. No. 4 of 1991. 10. In view of the above findings, we set aside the impugned judgment and order dated 5.7.2004 passed by the learned Addl. Sessions Judge, Manipur West in S.T. No. 4 of 1991. Consequently, the sentence imposed on the appellant is not sustainable in the eye of law. We send back the case to the concerned trial Court for proceeding afresh from the stage of Section 232 and 233 of the Cr.P.C. The trial Court shall dispose of the case within 4 (four) months from the date of receipt of the case records. It is, further, ordered that the appellant be released on bail on his executing a PR. bond of Rs. 30,0007-with surety of the like amount to the satisfaction of the trial Court. The trial Court records be sent back to the Court of the learned Addl. Sessions Judge, Manipur West along with a copy of this order so as to reach there on or before 31.8.2005. If the accused appellant goes out the Jail on the basis of the bail order passed by this Court before the above said date, he is to appear before the learned Addl. Sessions Judge, Manipur West on 31.8.2005 in connection with proceeding of the case. If he is in the Jail on the said date on account of his failure to furnish bail bond, the Jail authority is to take necessary steps for production of the accused appellant above the Addl. Sessions Judge, Manipur West on 31.8.2005 without fail. Inform all concerned. Order accordingly.