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2016 DIGILAW 1114 (ORI)

Shankarlal Agrawala v. State of Orissa

2016-11-17

S.PUJAHARI

body2016
JUDGMENT S.PUJAHARI, J. - The appellant herein calls in question the judgment of conviction and order of sentence passed against him in II(C) C.C. No.5 of 1990 on the file of the Special Judge-cum- Sessions Judge, Balangir. The learned trial court vide the impugned judgment and order held the appellant (hereinafter referred to as “the accused”) guilty of the charge under Section 7(1)(a)(ii) of the Essential Commodities Act, 1955 (hereinafter referred to as “the Act”) and sentenced him to undergo imprisonment for a period of three months for contravention of Clause-3(ii) of the Orissa Food Grains Dealers’ Licensing Order, 1964 (hereinafter referred to as the “Licensing Order”). 2. The accused allegedly being found in possession of 13.50 quintals of ‘Gurji’ without any licence, i.e., having stored more than 10 quintals of ‘Gurji’ he deemed to be a dealer within the meaning of the aforesaid Licensing Order. That being the allegation, the accused was prosecuted. To substantiate the allegation, prosecution had examined two witnesses, of whom, P.W.1 is the then Marketing Intelligence Inspector. His evidence reveals that on 06.09.1989 he had inspected the business premises of the accused in the name and style “Balaji Trading”. His evidence further reveals that he found stock of 13.50 quintals of ‘Gurji’, but the accused could not produce any licence for doing business of ‘Gurji’ in such quantity. Since the accused had no dealership licence for doing business in ‘Gurji’, P.W.1 seized the stock under seizure list (Ext.1). This witness denies suggestion that on 18.08.1989 the accused had applied for licence, the Collector being the Licensing authority. P.W.2, a Clerk attached to the Office of P.W.1 had accompanied the P.W.1 to the business premises of the accused on 06.09.1989 where they found the accused had stored 13.50 quintals of ‘Gurji’ having no licence required under Licensing Order. This witness was not subjected to any cross-examination. P.Ws.1 and 2 having deposed that accused was found transacting business in ‘Gurji’ in his business premises on 06.09.1989 to an extent of 13.50 quintals, but could not produce any licence on demand as required under the aforesaid Licensing Order. Even there was no suggestion that the accused is not related with the questioned business premises searched on 06.09.1989 by P.W.1 nor there is even any suggestion that he was not found in possession of ‘Gurji’ to an extent of 13.450 quintals. Even there was no suggestion that the accused is not related with the questioned business premises searched on 06.09.1989 by P.W.1 nor there is even any suggestion that he was not found in possession of ‘Gurji’ to an extent of 13.450 quintals. This being the nature of the evidence, there is overwhelming evidence on record that on 06.09.1989 the accused was doing business in his firm “Balaji Trading” in ‘Gurji’ to an extent of 13.50 quintals having no licence. This is the essence of the evidence brought on record. 3. Assailing the conviction, the learned counsel representing the accused would contend that the accused by 18.08.1989 having applied for licence and no opportunity being afforded to him to produce that licence, the accused was highly prejudiced in his trial. To make it more explicit, the learned counsel for the accused submits that no statement of the accused under the mandatory provisions of Section 313 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) being recorded, the accused was prejudiced in his defence. Hence, he having given no opportunity to know the incriminating circumstances brought against him and to explain the same, the impugned judgment of conviction and order of sentence are unsustainable. 4. Per contra, the learned counsel appearing for the State would submit that no document being produced by the accused in course of trial and when personal appearance of the accused was dispensed with in such summery trial, his examination under Section 313(1) of Cr.P.C. was dispensed with in terms of proviso to Section 313(1)(b) of Cr.P.C. 5. The moot question that needs decision is whether nonexamination of the accused under Section 313(1) of Cr.P.C. in the facts and circumstances is fatal to the prosecution ? 6. A scrutiny of lower Court records, Order No.13 dated 25.03.1992 reveals that since the personal appearance of the accused was dispensed with for that date in terms of Section 317 of Cr.P.C. and when the accused remained absent on that date, the learned lower Court dispensed with examination of accused as required under the proviso to Section 313(1)(b) of Cr.P.C. At this juncture, it is pertinent to quote the provisions of Section 313 of Cr.P.C. which reads as thus :- “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).” 7. On the plain language of Section 313 of Cr.P.C., it is evident that in a summons-case, when the personal appearance of the accused has been dispensed with under Section 205 of Cr.P.C. or Section 317 of Cr.P.C., the discretion is vested on the Magistrate to dispense with the rigor of personal examination of the accused under Section 313 of Cr.P.C. But, the examination of accused under the aforesaid provisions is not a mere formality. It aims at affording opportunity to the accused to explain the incriminating circumstances brought out against him in the prosecution evidence before he is called upon to enter his defence. In this regard, reliance may be made in a decision of the Apex Court in the case of Shivaji Saheb Rao vrs. State of Maharashtra, AIR 1973 S.C. 2622 and in the case of Mazahar Ali vrs. State, 1976 CRI.L.J. 1629. It is trite law, nevertheless fundamental that the accused’s attention should be drawn to every inculpating material so as to enable him to explain him, where such an omission has occurred. It is also settled law that when a circumstance was not put to the accused in examination under Section 313 of Cr.P.C., the said circumstance could not be used against him. It is also settled law that non-examination of the accused under Section 313 of Cr.P.C. is not such an irregularity which stood cured under Section 465 of Cr.P.C., but it is illegality which went to the root of the case. By not examining the accused under the aforesaid section, opportunity is not given to the accused to explain the incriminating circumstances against him. The accused has successfully established how he was prejudiced for such non-examination. [See 1978 CRI.L.J. 544 (Ram Lochan vrs. State)]. By not examining the accused under the aforesaid section, opportunity is not given to the accused to explain the incriminating circumstances against him. The accused has successfully established how he was prejudiced for such non-examination. [See 1978 CRI.L.J. 544 (Ram Lochan vrs. State)]. In the instant case, accused remained absent on that fateful day and a petition under Section 317 of Cr.P.C. was filed on his behalf. The learned lower court without assigning any reason whatsoever dispensed with examination of the accused under Section 313(1) of Cr.P.C. It is not a case where the personal appearance of the accused was dispensed with either under Section 205 of Cr.P.C. or under Section 317 of Cr.P.C. for a considerable period. Only because the accused remained absent on that particular day, dispensing with examination of the accused in a case of this nature has definitely caused prejudice to him. Apparently, he being under impression that he having applied for licence though to a wrong authority he had no mens rea to commit the offence as held in the case of Raghunatha Panigrahi vrs. State of Orissa, 71 (1991) C.L.T. 582. Consequently, when the accused was not provided with an opportunity to explain the circumstances in which he was indicted in the offence alleged against him, this Court is of the view that a prejudice was caused to the accused. 8. In view of the aforesaid, this Court is of the view that the conviction of the accused, as such, is indefensible and, accordingly, the same cannot be sustained. I would, therefore, allow this criminal appeal and set-aside the impugned judgment of conviction and order of sentence. Accordingly, the accused is acquitted of the offence charged. L.C.R. received be sent back forthwith along with a copy of this Judgment. Appeal allowed.