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2010 DIGILAW 1786 (ALL)

Naththan Lal & Anr. v. State of U. P. & Anr.

2010-05-26

S.N.H.ZAIDI

body2010
S.N.H. Zaidi,J.:- This revision has been directed against the common judgment and order dated 10.2.2010 passed by the Special Additional Sessions Judge, Pratapgarh in Criminal Appeal Nos. 26 of 1998 and 28 of 1998, whereby the appeals were allowed and the judgment and order dated 16.9.1998 of the Chief Judicial Magistrate, Pratapgarh, passed in Criminal Case No. 1558 of 1993 Brahm Dutta vs. Sheetla Prasad Maurya and others was set aside and the case was remanded to the trial Court for recording the statement of accused appellants under section 313 of the Code of Criminal Procedure, 1973, for short Cr.P.C, and for deciding the case afresh on merits after giving them opportunity to adduce evidence in defence. 2. The brief facts giving rise to this revision are that a complaint case no. 1558 of 1993 was instituted by opposite party no. 2 against the revisionist and four others, who were summoned to face the trial by the Magistrate. On the basis of evidence recorded under section 244 Cr.P.C., the accused persons were tried for the offences of sections 218 and 120-B I.P.C. During the trial one accused died. The trial Magistrate acquitted two accused and convicted the remaining three, including the revisionists, under the said sections by judgment and order dated 16.9.1998. The convicted persons, preferred appeals against the same. During the appeals, one of the appellants died. The learned lower appellate court allowed both the appeals by a common judgment and after setting aside the impugned judgment and conviction order remitted the case to the trial court with the directions as aforesaid. 3. I have heard learned counsel for the revisionists, learned A.G.A. for the State and perused the record. 4. One of the grounds that was mainly raised before the lower appellate court and found favour by it is that the trial court had not properly complied with the requirement of section 313 Cr.P.C. as the questions relating to incriminating circumstances that had appeared against the accused persons in the prosecution evidence were not put to them to enable them to explain about those circumstances and thus such evidence could not be read against the accused persons. 5. It appears that the trial Court had only put the following three questions to the accused persons under section 313 Cr.P.C., namely:- "1:- You have heard the statement of the witnesses. Why they are deposing against you? 5. It appears that the trial Court had only put the following three questions to the accused persons under section 313 Cr.P.C., namely:- "1:- You have heard the statement of the witnesses. Why they are deposing against you? 2:- Do you want to give evidence in defence? 3:- Do you want to say anything more?." 6. The Supreme Court in the case of Ajmer Singh vs. State of Punjab 1953 SCR 418 : ( AIR 1953 Sc 76 ) while considering the scope of section 342 of the old Code, which corresponds to section 313 Cr.P.C. held that it is not a sufficient compliance with the section to generally ask the accused that "having heard the prosecution evidence what he has to say about it". The accused must be questioned separately about each material circumstance which is intended to be used against him. The whole object of section is to afford the accused a fair and proper opportunity of explaining the circumstance which appeared against him and the question put to him must be fair and be couched in a form which even an ignorant or illiterate person may be able to appreciate and understand. 7. In the case of Ram Shanker Singh and others vs. State of West Bengal reported in AIR 1962 SC 1239 : AIR 1962 SC 1239 ) the Supreme Court while elaborating the scope of section 342 of the old Code, has held:- "Section 342 of the Code of Criminal Procedure by the first sub-section provides, in so far as it is material : 'For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court....shall.... question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.' Duty is thereby imposed upon the Court to question the accused generally in a case after the witnesses for the prosecution have been examined to enable the accused to explain any circumstance appearing against him. This is a necessary corollary of the presumption of innocence on which our criminal jurisprudence is founded. The object of the section is to afford to the accused an opportunity of showing that the circumstances relied upon by the prosecution which may be prima facie against him, is not true or is consistent with his innocence. The opportunity must be real and adequate. The object of the section is to afford to the accused an opportunity of showing that the circumstances relied upon by the prosecution which may be prima facie against him, is not true or is consistent with his innocence. The opportunity must be real and adequate. Questions must be so framed as to give to the accused clear notice of the circumstances relied upon by the prosecution, and must give him an opportunity to render such explanation as he can of that circumstance. Each question must be so framed that the accused may be able to understand it and to appreciate what use the prosecution desires to make of the evidence against him. Examination of the accused under section 342 in not intended to be an idle formality, it has to be carried out in the interest of justice and fair play to the accused : by a slipshod examination which is the result of imperfect appreciation of the evidence, idleness or negligence the position of the accused cannot be permitted to be made more difficult than what' it is in a trial for an offence". 8. In a recent case of Asraf Ali Vs. State of Assam 2008 (62) ACC 669 : (AIR 2009 Sc (Supp) 654) the Apex Court has held that all the circumstances which appear against the accused and upon which the prosecution relies should be specifically put to the accused in order to give him an opportunity to explain those circumstances. 9. In the light of above observations of the Apex Court, it is evident that by putting the questions to the accused persons, as mentioned above, the trial Court had not properly complied with the requirements of section 313 Cr.P.C. as the attention of the accused persons was not drawn towards any incriminating circumstance that had appeared against them in the prosecution evidence while putting questions to them so as to enable them personally to give explanation in respect thereof. 10. The contention of the learned counsel for the revisionists is that due to improper compliance of the mandatory provisions of section 313 Cr.P.C., the trial had vitiated and as such the lower appellate court should have acquitted the revisionists instead of remitting the case to the trial court with any direction. 10. The contention of the learned counsel for the revisionists is that due to improper compliance of the mandatory provisions of section 313 Cr.P.C., the trial had vitiated and as such the lower appellate court should have acquitted the revisionists instead of remitting the case to the trial court with any direction. In support of this contention reliance has been placed upon the observation of the Supreme Court made in the case of Basavaraj R. Patil and others Vs. State of Karnataka and others, 2000(41) ACC 1013 : ( AIR 2000 SC 3214 ) wherein the trial Court had recorded the statement of certain accused persons under section 313 Cr.P.C. and allowed the statement of three absent accused persons to be recorded through counsel and after hearing the arguments passed a judgment acquitting all the accused of the offence charged. In the revision filed by the complainant of the case before the High Court challenging the order of acquittal, learned Single Judge of the High Court observed that the trial court has no discretion to dispense with the personal examination of the accused persons under section 313 Cr.P.C. and after setting aside the order of acquittal remanded the case to the trial court with the direction to dispose it of afresh after examining the three accused persons under section 313 Cr.P.C. The Supreme Court while considering the necessity of the compliance of section 313 Cr.P.C., has observed that non compliance of section 313 Cr.P.C. can be objected only by the accused and not by the complainant or the prosecution and in the absence of any complaint by the accused for its non compliance, there was no justification to remand the case to the trial Court only for the purpose of examining the concerned accused personally and to pass fresh order on merits. 11. The benefit of the above observation of the Apex Court can not be extended to the revisionists because, firstly, the ratio of the case is that non compliance of section 313 Cr.P.C. can be objected only by the accused and not by the complainant, and secondly, in this case it is the accused revisionists who are complaining about the improper compliance of section 313 Cr.P.C. and not the complainant. Moreover, under clause (b) of sub-section (1) of section 313 Cr.P.C., it is mandatory for the Court in every inquiry or trial to put questions to the accused to enable him personally to explain any circumstance that has appeared in the evidence against him after the prosecution witnesses are examined and before the accused is called on for his defence, and if the Court fails to properly comply with this statutory requirement, the appellate court is well within its powers to remand the case to the trial court for proper compliance of its statutory duty in order to secure the ends of justice. 12. In view of all the aforesaid, the order of learned lower appellate court remanding the case and directing the trial court to record the statement of the accused appellants under section 313 Cr.P.C. in accordance with law, does not suffer with any illegality or material irregularity so as to warrant the interference of this Court in exercise of its revisional jurisdiction. This revision is, therefore, devoid of any merit and is, accordingly, dismissed.