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2008 DIGILAW 203 (RAJ)

Kaushalya Devi v. State of Rajasthan

2008-01-23

RAGHUVENDRA S.RATHORE

body2008
ORDER This Criminal Misc. Petition under Section 482, Cr. P.C. has been filed against the order dated 14-6-2000, passed by the learned Additional Civil Judge (Upper Division) and Additional Chief Judicial Magistrate, No. 7, Jaipur City, Jaipur, whereby the request of the complainant petitioner to put question to the accused non-petitioners, under Section 313, Code of Criminal Procedure, was declined. 2. Being aggrieved of the said order, the complainant petitioner had filed a revision petition No. (300/2000), which was considered by the learned Special Judge (Sati Nivaran) and Additional Sessions Judge, Jaipur City, Jaipur, and dismissed by his order dated 14-8-2000. Hence, the present Misc. petition had been filed. 3. The petitioner had filed before the learned trial Court, a judgment dated 11-8-1999 passed by the learned Deputy Registrar, Co-operative Societies, Jaipur, in respect of the legal possession of the complainant party and it was requested that the same be taken on record. Further, it was requested that she may be allowed to put question to the accused persons in respect of it, under Section 313 of the Code of Criminal Procedure. The learned trial Court allowed the request of the petitioner, to the extent that the document be taken on record and the same be exhibited. But the request made by the petitioner in respect of putting question to the accused with regard to the said judgment, was declined. 4. The petitioner then filed a revision petition against the aggrieved part of the order passed by the learned Magistrate, but the same was rejected by the revisional Court vide order dated 14-8-2000, holding that the order under challenge is an interlocutory order and the same cannot be interfered with in its revisionary jurisdiction. It is against the aforesaid two orders, that the present Misc. Petition has been filed by the complainant petitioner under the inherent powers of this Court. 5. Learned counsel for the petitioner has submitted that the learned Courts-below have committed illegality by not permitting the petitioner to put the question to the accused persons in respect of the judgment dated 11-8-1999. He has further submitted that it is necessary, when any incriminating circumstance appears against the accused person, that an opportunity of hearing has to be granted to him, by putting question and seeking his reply in the matter. He has further submitted that it is necessary, when any incriminating circumstance appears against the accused person, that an opportunity of hearing has to be granted to him, by putting question and seeking his reply in the matter. According to him, ignoring to put question to accused on the incriminating circumstances, in respect of the judgment dated 11-8-1999, which concerns with the legal possession entitling the complainant petitioner, is an abuse of the process of the Court. It has also been submitted that without seeking reply/explanation from the accused persons, the said judgment cannot be used for the purposes of giving findings against them. 6. The learned Public Prosecutor as well as the learned counsel for the respondents have tried to support the orders passed by the Courts-below. They have submitted that the judgment dated 11-8-1999 is a public document and it gives a judicial information, as such, no incriminating question can be asked to the accused persons. 7. As mentioned above, the judgment dated 18-11-1999 passed by the Deputy Registrar, Co-operative Societies, Jaipur is in respect of legal possession of the complainant petitioner. It is a settled principles of law that, if any incriminating circumstance is appearing against the accused persons then without putting question to them in that respect and seeking explanation, such circumstance cannot be used for the purposes of giving any finding against them. It is also in-consonance with the principles of natural justice that if any finding is recorded against the accused persons then they should be given an opportunity of hearing to explain the same. 8. The said principles of law is well settled and consistently held by the Apex Court since long. It was in the year 1953, in the case of Hate Singh Bhagat Singh v. State of Madhya Bharat, AIR 1953 SC 468 : (1953 Cri LJ 1933) wherein it was held as under :- "We have a further comment to make. Both the Sessions Judge and the High Court have attached importance to the fact that both accused absconded, but at no stage of the case have they been asked to explain this. We have stressed before the importance or putting to the accused each material fact which is intended to be used against him and of affording him a chance of explaining it if he can. We regret to find that this rule is so often ignored." 9. We have stressed before the importance or putting to the accused each material fact which is intended to be used against him and of affording him a chance of explaining it if he can. We regret to find that this rule is so often ignored." 9. Similarly, the Apex Court has uniformally taken the same view in the subsequent judgments, as for instance in the case of Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 : (1973 Cri LJ 1783), wherein it was held that "It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has followed." The Apex Court has further held that "Great care is expected of Sessions Judges who try grave cases to collect every incriminating circumstance and put it to the accused even though at the end of a long trial the Judge may be a little fogged out". 10. In the case of Shamu Balu Chaugule v. State of Maharashtra, AIR 1976 SC 557 : (1976 Cri LJ 492), the Hon'ble Supreme Court had held that "the fact that the appellant was said to be absconding not having been put to him under Section 342, Cr. P.C. could not be used against him". 11. Another decision was given by the Apex Court in the case of Harijan Megha Jesha v. State of Gujarat, AIR 1979 SC 1566 : (1979 Cri LJ 1137) holding as under :- "Unfortunately, however, as this circumstance was not put to the accused in his statement under Section 342 the prosecution cannot be permitted to rely on this statement in order to convict the appellant particularly after he had been acquitted by the trial Court." 12. A Larger Bench of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, 1984 Cri LJ 1738 had held as under :- "Apart from the aforesaid comments there is one vital defect in some of the circumstances mentioned above and relied upon by the High Court, viz. circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. circumstances Nos. 4, 5, 6, 8, 9, 11, 12, 13, 16 and 17. As these circumstances were not put to the appellant in his statement under Section 313 of the Cr. P.C. they must be completely excluded from consideration because the appellant did not have any chance to explain them." 13. In a later judgment, the Hon'ble Supreme Court in the case of Janak Yadav v. State of Bihar, (1999) 9 SCC 125 , affirming the earlier views, held as under :- "Section 313, Cr. P.C. prescribes a procedural safeguard for an accused facing the trial to be granted an opportunity to explain the facts and circumstances appearing against him in the prosecution's evidence. That opportunity is a valuable one and cannot be ignored. 14. The Division Bench of the Bombay High Court in the case of Bhavlala Shanker Mahajan v. State of Maharashtra, 1997 Cri LJ 3060 have also laid down that "The provisions of Section 313, Cr. P.C. are such that the accused is given a chance to explain each and every circumstances appearing against him. So it becomes necessary for the Court to put specifically each and every circumstances appearing against the accused and to ask his explanation. Asking vague complex or compound questions will not be proper examination of the accused under Section 313 of the Cr. P.C." 15. The said principle of law has also been consistently followed by this High Court, since, the case of Mool Singh v. The State of Rajasthan, RLW 1989 (2) 310 wherein, during the course of investigation, the I.O. had recorded the statement of the petitioner and the said statement had not been proved on record. It was admittedly not put to the petitioner, who had no opportunity to explain the same in his examination under Section 313, Cr. P.C. The Court had held that the learned lower Courts have relied upon the said statement of the petitioner, but in view of the settled principles of law laid down by the Hon'ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984 Cri LJ 1738) (supra), such statement has to be completely excluded from consideration. 16. P.C. The Court had held that the learned lower Courts have relied upon the said statement of the petitioner, but in view of the settled principles of law laid down by the Hon'ble Supreme Court in Sharad Birdhichand Sarda v. State of Maharashtra, (1984 Cri LJ 1738) (supra), such statement has to be completely excluded from consideration. 16. Later on in the case of Jogendra Singh v. State, RLR 1999 (1) 488 : (1999 Cri LJ 994), this Court had held that "It is further noticed that no question has been asked to the accused in his statement under Section 313, Cr. P.C. regarding the 'Bilti' Ex.-P.25. Needless to state, without putting the circumstances to the accused in the statement under Section 313, Cr. P.C. it cannot be used to convict him." 17. Like-wise, yet another Bench of this Court in the case of Bhawani Singh v. State of Rajasthan, 2000 WLC (Raj) UC 353, took note of the fact that the documentary evidence was also not put to the accused petitioner in his statement recorded under Section 313, Cr. P.C. 18. Therefore, it is a settled principle of law, since long, that if there is any incriminating circumstances flowing from any event/circumstances or documentary evidence, question in that respect has to be put to the accused petitioner seeking his reply/explanation in his statement under Section 313, Cr. P.C. If it is not so done then such circumstance has to be excluded and in no case, any order prejudice or conviction, can be passed against the accused persons on the basis of such circumstance. If question on such circumstances has been ignored by the learned trial Court, then it is an illegality and amounts to an abuse of the process of Court. 19. Consequently, I am of the considered opinion, that in the present case, the learned trial Court has committed illegality in not permitting to put question to the accused non-petitioners in respect of the judgment dated 11-8-1999, under Section 313, Cr. P.C. The learned trial Court has rather committed an abuse of the process of the Court by not allowing the petitioner to put question in respect of the incriminating circumstance to the accused persons in their statement under Section 313, Cr. P.C. The learned trial Court has rather committed an abuse of the process of the Court by not allowing the petitioner to put question in respect of the incriminating circumstance to the accused persons in their statement under Section 313, Cr. P.C. despite of specific request having been made by the petitioner, although, the document/ judgment dated 11-8-1999 has been taken on record, which pertains to the legal possession entitling the petitioner in the matter. 20. In view of the aforesaid settled principles of law and the conclusion arrived at by this Court, on the merits of the case, it is not necessary to go into the question, whether the order of the learned Magistrate which is an interlocutory or a final order, so as to ascertain the revisional jurisdiction of the learned Sessions Court. 21. Consequently, this petition is allowed and the impugned orders passed by the learned Magistrate as well as by the learned Additional Sessions Judge are quashed and set-aside. The learned Magistrate is directed to record the statement of the accused persons under Section 313, Cr. P.C. by permitting the complainant petitioner to put questions to them in respect of the judgment dated 11-8-1999 passed by the learned Deputy Registrar, co-operative Societies, Jaipur. It is also made clear that the accused non-petitioners may be given an opportunity to produce their defence, if they so like and then to decide the case finally. Petition allowed.