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2019 DIGILAW 218 (UTT)

Bhagwan Singh v. State of Uttarakhand

2019-03-18

RAMESH CHANDRA KHULBE, SUDHANSHU DHULIA

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JUDGMENT : SUDHANSHU DHULIA, J. 1. This criminal jail appeal has been filed by the appellant challenging the judgment and order dated 26.06.2013 passed by the Sessions Judge, Pithoragarh in Sessions Trial No.23 of 2012 “State Vs. Bhagwan Singh”, whereby the accused/appellant has been convicted under Section 302 of IPC and has been sentenced for rigorous imprisonment for life with a fine of Rs.50,000/- (Rupees Fifty Thousand Only), and in case of default in payment of fine, he shall undergo six months additional simple imprisonment. 2. The appellant is presently in jail. As the appellant was not able to engage a counsel to defend himself, the trial court under the provisions of Section 304 of the Code of Criminal Procedure (from hereinafter referred to as “Cr.P.C. ”) provided a defence counsel to the accused, who was a practicing Advocate in the District Court at Pithoragarh. The appellant is being represented by an Amicus Curiae before this Court Sri Kailash Chandra Tiwari. 3. At the time when we were hearing this appeal against conviction, an aspect has been raised before us by the Amicus Curiae, which we propose to deal first with before we proceed any further in the matter. 4. The case of the prosecution is that the accused/appellant who was the neighbour of the complainant had assaulted complainant’s son with an axe, and killed him. The incident happened in the house of the accused/appellant at about 8:30 P.M., on 10.08.2012. There are eye witnesses of the incident in the shape of the complainant and others. 5. The prosecution in order to prove its case has examined as many as seven witnesses. After all the witnesses of the prosecution were examined, instead of putting questions to the accused in terms of Section 313 (1) (b) of Cr.P.C., the Court, on its own motion, asked the accused, (through his counsel) to give written statement under sub-section (5) of Section 313 Cr.P.C., as the Trial Court was of the opinion that it would be sufficient compliance of Section 313 of Cr.P.C. The appellant/accused was convicted under Section 302 of IPC and sentenced for life imprisonment. 6. 6. After hearing the learned counsel for the appellant as well as the learned State Counsel at length, we are of the considered opinion that there has been a procedural lapse in the present case, as under the facts and circumstances of the case merely asking the accused to submit his written statement under sub-section (5) of Section 313 of Cr.P.C. without the accused requesting for the same, particularly when there were no question answers either put to the accused under sub-section (1) (b) of Section 313 of Cr.P.C., nor were such questions prepared in a written form by the Court, with the help of the prosecutor and the defence counsel (as provided in sub-section (5) of Section 313 Cr.P.C. ). 7. Sub-section (5) has been inserted in Section 313 of Cr.P.C. by way of an amendment Act No. 5 of 2009. This amendment in turn was based on the 154th report of the Law Commission. 8. The Law Commission was of the view that Section 313 of Cr.P.C. is primarily based on the principle of natural justice and fair play. The provision empowers a trial Judge to give reasonable opportunity to the accused to give explanation of the incriminating facts and the evidences against him presented by the prosecution. The Law Commission was of the view that many a times mechanical and meaningless questions were being put, without the accused understanding the implications of the questions, though the provision envisages a meaningful and realistic role of the judges in the examination of the accused. The Law Commission was of the view that many a times questions are prepared by the Bench Clerk of the court in a mechanical and stereotyped manner. It suggests following changes:- “5. In the Workshops held at various places the Judges and senior Advocates, while reiterating the need for this provision as a valuable safeguard to the accused in the trial processes, felt that with a view to eliminating delays in trials, the Judges could take the help of prosecutor and defence counsel in preparing relevant questions. 6. We are of the view that the Court can take the assistance of the prosecutor and defence counsel and prepare the questions which are to be put in a concise form to the accused under section 313. The Court can also permit the filing of written statement by the accused as sufficient compliance with section 313.” 9. 6. We are of the view that the Court can take the assistance of the prosecutor and defence counsel and prepare the questions which are to be put in a concise form to the accused under section 313. The Court can also permit the filing of written statement by the accused as sufficient compliance with section 313.” 9. Based on the Law Commission’s Report sub-section (5) was inserted in Section 313 of Cr.P.C. by way of Act No.5 of 2009. Sub-section (5) of Section 313 of Cr.P.C. reads as under:- “313. Power to examine the accused.— (1)…. (2)…. (3)…. (4)…. (5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.” 10. It may also be necessary to state that the Law Commission’s report was also based on the judgment passed by the Hon’ble Apex Court in the case of Tilkeshwar Singh and others Vs. The State of Bihar reported in AIR 1956 SC 238 . In the aforesaid case, the matter before the Hon’ble Apex Court was regarding the scope of Section 342 of Cr.P.C. (presently Section 313 Cr.P.C. ), and the facts were that when the accused was to be examined under Section 342 Cr.P.C. , the accused himself had requested that he would like to file his written statement, and his personal presence be exempted. The written statement given by the accused was very elaborate and furnished his answers on all the points raised in the prosecution evidence. In that event, the Hon’ble Apex Court was of the view that no prejudice has been caused to the appellant/accused if question answers were not put to him. However, there is an important difference here. In the present case, the accused has not made a choice by asking for a written statement, instead of questions being put to him under sub-section (1) (b) of Section 313 of Cr.P.C. We have been informed that as the appellant was not in a position to engage a counsel for himself, he was provided one under Section 304 Cr.P.C. There is also no request from the side of the counsel of the appellant/accused for submission of written statement. 11. 11. The order-sheet shows that the Court suo motu asked the accused to give his written statement under sub-section (5) of Section 313 of Cr.P.C. , being of the opinion that would be a sufficient compliance of Section 313 of Cr.P.C. as stated in sub-section (5). We are afraid that this would not be a sufficient compliance of Section 313 of Cr.P.C. The reason being that in this case the accused/appellant had never asked for submission of a written statement. The Court had left him with no choice by asking him to do that. 12. At the root of Section 313 of Cr.P.C. is the principle of natural justice and fair play and more specifically the principles of audi alteram partem. It will be a fair procedure only when the accused has been given an opportunity to explain all the incriminating facts and evidences against him. It can be said that there is a sufficient compliance where instead of putting questions under Section 313 of Cr.P.C. , the Court taking the help of the prosecutor and the defence counsel prepares the relevant questions and then these questions are given to the accused, and simultaneously the Court permits him to file the written statement based on the questions. Simply directing the accused to file his written statement, is not enough. 13. Under sub-section (1) (b) of Section 313 of Cr.P.C. , it is mandatory upon the court (as the word used is “shall”) to put questions to the accused after all the prosecution witnesses have been examined and before the accused is called on for his defence. In other words, he has to be questioned on all the incriminating facts and all the evidences which have been placed before the Court in the form of the prosecution witnesses. Sub-section (5) which was inserted in Section 313 of Cr.P.C. by way of an amendment in the year 2009 has created a different situation. Section 313 of Cr.P.C. reads as under:- “313. Power to examine the accused. Sub-section (5) which was inserted in Section 313 of Cr.P.C. by way of an amendment in the year 2009 has created a different situation. Section 313 of Cr.P.C. reads as under:- “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). (2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. (5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.” 14. Sub-section (5) is in two parts. Under the first part, the court may take the help of the prosecutor and the defence counsel in preparing relevant questions, which are to be put to the accused and the second part is that the court may permit filing of the written statement of the accused as sufficient compliance of this section. 15. In our opinion, in a case where neither the accused nor his counsel has made a request for filing a written statement and the court chooses to act on sub-section (5) as a sufficient compliance of Section 313 of Cr.P.C., then both the conditions as given in sub-section (5) have to be complied with. 15. In our opinion, in a case where neither the accused nor his counsel has made a request for filing a written statement and the court chooses to act on sub-section (5) as a sufficient compliance of Section 313 of Cr.P.C., then both the conditions as given in sub-section (5) have to be complied with. The relevant questions have to be prepared and while doing so, the court may take the help of the prosecutor and the defence counsel and secondly after supplying the copy of these questions to the accused, the court may permit him filing of a written statement. Then it will be considered as a sufficient compliance. 16. In the present case, the accused is from the lowest stratum of the society, who was not even in a position to engage a counsel for himself before the court below and it was only under the provisions of Section 304 of Cr.P.C. that legal aid was provided to the accused, through District Legal Service Authority. 17. In view of the above, we have no doubt in our mind that there has been a mistrial. 18. The present criminal jail appeal is hereby allowed. The judgment and order dated 26.06.2013 passed by the Sessions Judge, Pithoragarh is hereby set aside. 19. We remand the case for a retrial. We direct the Sessions Judge, Pithoragarh to recommence the trial from the stage of Section 313 Cr.P.C. only. Prosecution need not examine any of its witnesses, as it has already been done. The trial shall commence only from the stage of Section 313 Cr.P.C.. We also request the District Legal Service Authority to provide a Senior Advocate practicing on the criminal side to represent the accused. Further it is directed that the court shall follow the procedure as given under Section 313 of Cr.P.C. in the light of our above observations. 20. Considering that the matter has already been delayed, let the matter be expedited and it shall be concluded positively within a period of three months from the date a certified copy of this order is received by the trial court. It is made clear that the case shall proceed from the stage of 313 of Cr.P.C. itself. 21. Let a copy of this judgment along with the lower court record be sent back to the trial court for onward compliance. 22. It is made clear that the case shall proceed from the stage of 313 of Cr.P.C. itself. 21. Let a copy of this judgment along with the lower court record be sent back to the trial court for onward compliance. 22. Let the Registry forthwith inform the concerned jail authorities about this order.