Section 313 Cr.P.C. itself declares its object in explicit language that it is for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him. At the same time it should be borne in mind that the provision is not intended to nail the accused to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word ; in clause (a) of sub-section (1) in s. 313 of the Code indicates that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. (Para 31 and 33)
Supreme Court of India
State Of Punjab vs Hari Singh And Ors. on 16 February, 2009
HELD: 1.1 Whether there was conscious possession has to be determined with reference to the factual backdrop in each case. The fact which can be culled out from the evidence on record is that the accused persons were sitting atop gunny bags containing the contraband articles. Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 makes possession of contraband articles an offence and deals with punishment for contravention in relation to poppy straw. (Paras 10 and 11) [ 478-B, C]
Superintendent & Remembrancer of Legal Affairs, West Bengal vs. Anil Kumar Bhunja & Ors. AIR (1980) SC 52 and Gunwantlal vs. The State of M.P. AIR (1972) SC 1756 - referred to.
Health vs. Drown (1972) 2 All ER 561 (HL) and Sullivan vs. Earl of Caithness (1976) 1 All ER 844 (QBD) - referred to.
1.2 Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles. (Para - 17) [479-C]
Madan Lal & Anr. vs. State of Himachal Pradesh (2003) 6 SCALE 483 - referred to.
2.1 Section 313 Cr.P.C. itself declares its object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". At the same time it should be borne in mind that the provision is not intended to nail the accused to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in clause (a) of sub-section (1) in s. 313 of the Code indicates that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. (Para 31 and 33) [ 484-H; 485-A, B, C]
Jai Dev vs. State of Punjab AIR (1963) SC 612 - relied on.
2.3 The word "shall" in clause (b) to s. 313(1) of the Code is to be interpreted as obligatory on the court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the court should, in appropriate case, e.g. if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relieve him of such hardship and at the same time adopt a measure to comply with the requirements in s. 313 of the Code in a substantial manner. (Para - 37) [487-C, D]
2.4 If the accused (who is already exempted from personally appearing in the court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency, the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the matters: (a) a narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers; (b) an assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning; and (c) an undertaking that he would not raise any grievance on that score at any stage of the case. If the court is satisfied of the genuineness of the statements made by the accused in the application and affidavit, it is open to the court to supply the questionnaire to his advocate and fix the time within which the same has to be returned duly answered by the accused together with a properly authenticated affidavit that those answers were given by the accused himself. If the accused fails to return the questionnaire duly answered within the time, he shall forfeit his right to seek personal exemption from court during such questioning. If the course, as suggested, is adopted in exceptional exigency, it would not violate the legislative intent envisaged in s. 313 of the Code. (Paras - 38-40)[ 487-E, F, G, H; 488-A, B, C, D, E]
Basav Raj R. Patil vs. State of Karnataka (2000) 8 SCC 740 - relied on.
2.6 In the instant case, though, there was evidence regarding conscious possession, but no question relating to possession, much less conscious possession, was put to the accused u/s. 313 Cr.P.C. The questioning u/s.313 is not an empty formality. When the accused was examined u/s.313 Cr.P.C., the essence of accusation was not brought to his notice, more particularly, the possession aspect. The High Court's order does not suffer from any infirmity to warrant interference. (Paras - 18, 43 and 44) [479-D, E, F; 488-G, H; 489-A]
Shivaji Sahabrao Bobade vs. State of Mharashtra (1973) 2 SCC 793; Avtar Singha and Ors. vs.State of Punjab (2002) 7 SCC 419; Bhibuti Bhusan Das Gupta & Anr. vs. State of West Bengal AIR (1969) SC 381 and Hate Singh Bhagat Singh vs. State of Madhya Bharat AIR (1953) SC 468 - relied on.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 319 of 2009
From the final Judgement and Order dated 1.7.2005 of the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 2163-SB of 2003.
Kuldip Singh, for the Appellant.
Sheetal Prasad Juneja, for the Respondent.
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