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2016 DIGILAW 1545 (BOM)

Nuzhatunssae Begum v. State of Maharashtra

2016-08-26

V.K.JADHAV

body2016
JUDGMENT : V.K. JADHAV, J. 1. Rule. Rule returnable forthwith. By consent, heard finally at admission stage. 2. By way of this criminal writ petition, the petitioner/original complainant is challenging the order dated 22.7.2015 passed by the learned 2nd Additional Chief Judicial Magistrate, Parbhani, below Exh.1 in R.C.C. No. 142 of 2007. 3. Brief facts, giving rise to the present writ petition, are as follows:- (a) The petitioner had filed the complaint on 28.7.2005 in Nanalpeth police station, Parbhani against respondent Nos. 2 to 5 for the offences punishable under Sections 420, 464, 465, 466, 467, 471 r.w.34 of I.P.C. Since the police authorities had not taken any cognizance, the petitioner was constrained to file an application before the learned Chief Judicial Magistrate under section 156(3) of Cr.P.C. for issuing directions to the police to investigate into the matter. The petitioner had also submitted documents in support of her allegations made in the complaint. Thus crime No. 1/2005 came to be registered with Nanalpeth police station, Parbhani for the offences as aforesaid and after due investigation, the police submitted charge sheet against respondent Nos. 2 to 5. Learned C.J.M. Parbhani has framed charges against respondent Nos. 2 to 5 vide Exh.32 in R.C.C. No. 142 of 2007. Respondent Nos. 2 to 5 original accused had pleaded not guilty to the charge and claimed to be tried. The prosecution has thereafter examined the witnesses to substantiate the charges levelled against the accused. After completion of prosecution evidence, learned Additional C.J.M. Parbhani below Exh.1 in R.C.C. No. 142 of 2007 passed an order thereby dispensing with the statement of accused Nos. 2 to 5 under Section 313 of Cr.P.C. as there being no incriminating material against them. Being aggrieved by the said order, the petitioner original complainant has preferred this writ petition. 4. Learned counsel for the petitioner submits that there is ample evidence before the court for recording statement of respondent Nos. 2 to 5 original accused under Section 313 of Cr.P.C. Furthermore, the petitioner-complainant has filed many documents alongwith her complaint. However, the said documents are not considered before passing the impugned order by the trial court. The petitioner- complainant in her examination in chief in para 4 to 6, 8 to 11, and 13 to 17 has deposed about the acts of respondents original accused in order to substantiate the charges levelled against them. However, the said documents are not considered before passing the impugned order by the trial court. The petitioner- complainant in her examination in chief in para 4 to 6, 8 to 11, and 13 to 17 has deposed about the acts of respondents original accused in order to substantiate the charges levelled against them. Furthermore, P.W.2 has also in para 2 and 3 of examination in chief has supported the prosecution case. As per the provisions of Section 313 of Cr.P.C. it is bounden duty of the court to put all incriminating circumstances to the accused for enabling him/them personally to explain those circumstances appearing in the evidence against him/them. The provisions of Section 313 sub-section (1) clause (b) are mandatory and after witnesses for the prosecution have been examined and before the accused persons called for their defence, the court is bound to question the accused generally on the case to explain the circumstances appearing in the evidence against him. The sufficiency of evidence for conviction of the accused is not the criteria but the accused is necessary to be questioned generally on the case by giving opportunity to him to explain the circumstances appearing in the evidence against him. Learned counsel submits that the trial court by passing the impugned order has pre-judged the case and decided the fate of the case. 5. Learned counsel for respondents/original accused submits that the basic concept and object of Section 313 of Cr. P. C. is for the benefit of the accused, thereby affording him an opportunity to explain the circumstances appearing in the evidence against him. Though the mandate of Section 313 of Cr.P.C. is imperative with no exception, however, non-compliance can only be objected by the accused for whose benefit the Section has been enacted. Though the respondents accused are facing trial instituted otherwise than on the complaint, the State has not filed any petition and complainant has approached this court. The complainant or the prosecution cannot challenge the order passed by the court in connection with the statement of accused being recorded under Section 313 of Cr.P.C. Considering the entire evidence on record, learned Judge of the trial court has recorded his opinion that no incriminating evidence is appearing against the accused and therefore, their examination under section 313 of Cr.P.C. stands dispensed with. Learned counsel for the respondents, in order to substantiate his submissions, places reliance on the judgment in the case of Basavraj R. Patil and others vs. State of Karnataka and others, reported in 2000 (1) Cr.L.J. 4604. 6. I have also heard learned A.P.P. for the respondent-State. 7. It is clear from the provisions of Section 313 of Cr.P.C. that attention of the accused must be specifically invited towards incriminating evidence or circumstances with a view to give him an opportunity to offer an explanation if he chooses to do so. The words “shall question him” used in cause (b) of sub-section (1) of Section 313 of Cr.P.C. clearly speaks about mandatory character of the clause and cast duty on the Court to question the accused generally on the basis of evidence so as to give opportunity to explain the incriminating material appearing against him. 8. In the case of Basavraj R. Patil and others (supra), relied upon by learned counsel for the respondents-original accused, in para 44 of the judgment, the Apex Court has observed that violation of compliance of Section 313 can be objected to only by the accused for whose benefit the section has been enacted. However, the Apex Court has also further observed that the complainant or the prosecution cannot be permitted to allow the illegality being committed and perpetuated after the enquiry or trial results in acquittal of the accused, to complain on the basis of the alleged violation. It has also further observed by the Apex Court in the said case that there is no allegation nor could there be any that the personal non examination of the accused person had, in any way, adversely affected the prosecution. In the facts of the said case, before the Apex Court, the accused Nos. 1 and 4 were not personally examined by the court in terms of provision of Section 313 of the Code. The factual position is that the counsel for the aforesaid accused persons filed an application seeking exemption of their personal appearance in the Court and replied the question put under section 313 of the Code on their behalf. 1 and 4 were not personally examined by the court in terms of provision of Section 313 of the Code. The factual position is that the counsel for the aforesaid accused persons filed an application seeking exemption of their personal appearance in the Court and replied the question put under section 313 of the Code on their behalf. In the backdrop of factual matrix of the case, since the prosecution or the complainant has not raised any objection at that time, the Apex Court has observed in para 44 of the judgment, as stated earlier, that the prosecution or the complainant cannot be permitted to allow illegality being committed and perpetuated so the enquiry or trial results in the acquittal of the accused. In the said case, before the Apex Court since the trial court has acquitted the said accused Nos.1 and 4, in the appeal preferred against that acquittal, the prosecution has raised ground that their examination under Section 313 of Cr.P.C. could not have been recorded through their counsel. 9. In the case in hand, though there is evidence on record, the learned Judge of the trial court has dispensed with the examination of accused under section 313 of Cr.P.C. with a finding that no incriminating evidence is appearing against them. In the present case, if the complainant or the prosecution would have allowed the said illegality being committed and perpetuated, certainly they would not be permitted to raise this ground in appeal, in case accused are acquitted by the Court. 10. It is not out of place to mention here that during the course of hearing of this writ petition, in response to the query made by this Court, learned A.P.P. has submitted that Government Pleaders office or the office of the Law and Judiciary had not received any proposal from the learned A.P.P. before the trial court for preferring petition before this Court. Thus, the complainant has rightly approached this Court and this petition can be entertained at her instance. 11. In the case of State of Maharashtra vs. Sukhdeo Singh and another, reported in AIR 1992 SC 2100 , the Apex Court has observed that the Judge is not expected to evaluate the evidence for the purpose of deciding whether or not he should question the accused. 11. In the case of State of Maharashtra vs. Sukhdeo Singh and another, reported in AIR 1992 SC 2100 , the Apex Court has observed that the Judge is not expected to evaluate the evidence for the purpose of deciding whether or not he should question the accused. It is also observed that after the Section 313 stage is over, the court has to hear the oral submissions of the counsel on the evidence adduced before pronouncing on the evidence and trial court Judge is not expected before he examines the accused under Section 313 of Cr.P.C. to sift the evidence and pronounce on whether or not he would accept the evidence regarding any incriminating material to determine whether or not to examine the accused on that material. The Apex Court has also observed that to do so would be to pre-judge the evidence without hearing the prosecution under section 314 of Cr.P.C. The Apex Court while concluding this point has observed that no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon. It is only after that stage is over that the oral arguments have to be heard before judgment is rendered. The Apex Court in para 50 of the judgment has made the following observations:- “50. Section 313 of the code is a statutory provision and embodies the fundamental principle of fairness based on the maxim audi alteram partem. It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence or circumstances laid on record with a view to giving him an opportunity to offer an explanation if he chooses to do so. The section imposes a heavy duty on the court to take great care to ensure that the incriminating circumstances are put to the accused and his response solicited. The words 'shall question him' clearly bring out the mandatory character of the clause and cast an imperative duty on the court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him. It is, therefore, true that the purpose of the examination of accused under Section 313 is to give the accused an opportunity to explain the incriminating material which has surfaced on record. It is, therefore, true that the purpose of the examination of accused under Section 313 is to give the accused an opportunity to explain the incriminating material which has surfaced on record. The stage of examination of the accused under clause (b) of sub-section (1) of section 313 reaches only after the witnesses for the prosecution have been examined and before the accused is called on to enter upon his defence. At the stage of closure of the prosecution evidence and before recording of statement under section 313, the learned judge is not expected to evaluate the evidence for the purpose of deciding whether or not he should question the accused. After the section 313 stage is over he has to hear the oral submissions of counsel on the evidence adduced before pronouncing on the evidence. The learned trial judge is not expected before he examines the accused under section 313 of the Code, to sift the evidence and pronounce on whether or not he would accept the evidence regarding any incriminating material to determine whether or not to examine the accused on that material. To do so would be to pre-judge the evidence without hearing the prosecution under section 314 of the Code. Therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon. It is only after that stage is over that the oral arguments have to be heard before the judgment is rendered. It is only where the court finds that no incriminating material has surfaced that the accused may not be examined under section 313 of the Code. If there is material against the accused he must be examined. In the instant case it is not correct to say that no incriminating material had surfaced against the accused, particularly accused No. 5, and hence the trial judge was not justified in examining the accused under section 313 of the Code.” 12. In the instant case, therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon. Learned counsel for the petitioner has pointed out incriminating evidence against the accused. In the instant case, therefore, no matter how weak or scanty the prosecution evidence is in regard to a certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon. Learned counsel for the petitioner has pointed out incriminating evidence against the accused. It cannot be therefore, said that no incriminating material is surfaced against the respondents-original accused. Thus, learned Judge of the trial court is not justified in non examining the accused under section 313 of Cr.P.C. 13. In the result, the impugned order passed by the learned Judge of the trial Court is required to be quashed and set aside with directions that the Magistrate shall take appropriate decision about examination of the accused under Section 313 of Cr.P.C. having due regards to the observations in the forgoing paras and also observations made by the Hon’ble Apex Court in the case of State of Maharashtra vs. Sukhdeo Singh and another (supra). Hence, I proceed to pass the following order:- ORDER (I) Criminal writ petition is hereby allowed. (II) The order dated 22.7.2015 passed below Exh.1 in R.C.C. No. 142 of 2007 by the learned 2nd Additional Chief Judicial Magistrate, Parbhani, is hereby quashed and set aside. (III) The Magistrate shall take appropriate decision about examination of accused under Section 313 of Cr.P.C. (IV) Writ petition is disposed of. Rule made absolute in the above terms. 14. At this stage, learned counsel for the respondents original accused requested for stay of this order for a period of six weeks. However, considering the fact that the case is old one and almost reached at concluding stage, the request is refused.