There is nothing under Sub-Section 5 of Section 313 Cr.P.C which prevents the accused to submit to file written statement even after being examined orally by the Court. As mentioned above the provisions of Section 313 Cr.P.C have been incorporated mainly to provide ample opportunity to the accused to explain himself and to prove his innocence in the light of the incriminating evidences which have been adduced against him during the examination of prosecution witnesses. This opportunity to explain himself is in addition to the right of the accused to adduce his own defence witness under Section 233 or Section 243 Cr.P.C as the case may be. The legislature by inserting Sub-section 5 to Section 313 Cr.P.C intended to facilitate furnishing of answers to the questions put by the Court to the accused even when the accused is not physically present in the Court by filing written statement. It is however, not restricted only to such cases where the accused is for any reason not able to present at the Court. There is nothing in the section or any other provision under the code which debars submission of written statement by an accused who is already present in the Court to face the questions of the Court. Therefore, this Court is of the view that if any accused desires to file a written statement to the questions put by the Court, he cannot be denied this right. As already mentioned above, under Section 243(1) of the Cr.P.C, the accused who is involved in a trial of warrant case instituted on police report can submit any written statement before the magistrate. Therefore, permitting an accused to submit his written statement even at the time of accused examination under Section 313 Cr.P.C cannot be said to be an alien concept.
36. Consequently, if an accused has a right to file a written statement at the time of examination under Section 313 Cr.P.C as a corollary, it follows that the accused would have the right to be furnished with the questions in advance so that he can submit his written statement. It is only after the accused has been furnished with the questions of the Court that he can file his written statement. This Court is, accordingly, of the view that furnishing of questions prepared by the Court to the accused to enable the accused to file his written statement under Section 313 Cr.P.C should be normally allowed by the trial Court, unless, the Court is of the view that such request has been made to delay the trial or is vexatious and not warranted under the circumstances, as it is the discretion the Court.
37. In fact, the questions that are to be put by the Court are to be relevant to the issues involved in the trial and related to the incriminating materials and evidences already adduced against the accused and on record, and hence no prejudice can be said to be caused to anybody by disclosing the questions prepared by the Court to the accused in advance so that he can file his written statement.
38. Accordingly, this Court is of the view that the learned Special Judge ought to have furnished copies of the questions prepared by the Court which were put to the accused so as to enable him to file his written statement in answer to the said questions.
39. In the present case, it has been noted that the accused Petitioner has been already examined under Section 313 Cr.P.C and as such he is already aware of the questions put to him by the Court. As such, he would be at liberty to file his written statement to the questions already put by the Court to him irrespective of the oral answers the accused has already given to the Court.
40. For the reasons discussed above, this Court holds that ordinarily, an accused is entitled to be furnished in advance, if he makes a request, of the questions to be put by the Court for the purpose of accused examination under Section 313 of the Cr.P.C and he can file his written statement in addition to any oral answers given before the Court which request can be declined by the Court if the same has been done to delay the trial or is vexatious or for such germane reasons.In the High Court of Manipur at Imphal
(Before N. Kotiswar Singh, A.C.J)
Shri Langpoklakpam Kiranjit Singh,v.
The State of Manipur
Cril Petition No. 21 of 2017
Decided on November 7, 2017,
Citation:2017 SCC OnLine Mani 118
N. Kotiswar Singh, A.C.J:— Heard Mr. M. Gunedhor, learned counsel for the Petitioner; Heard also Mr. Athouba Khaidem, Learned P.P for the State.
2. The present petition has been filed challenging the order dated 20-07-2017 passed by the learned Special Judge, Imphal West, Manipur in Special Trial (POCSO) Case No. 7/2015/1/2015 by which the learned Special Judge rejected the prayer of the petitioner for supplying questions prepared by the Court for submission of written statement under Section 313 Cr.P.C
3. The Petitioner was arrested in connection with FIR No. 31(10)WPS-I/W under Section 4 of POCSO Act and is facing trial. The prosecution closed the evidence after examining 11(eleven) witnesses and thereafter, the Trial Court proceeded for examination of the accused petitioner under Section 313 Cr.P.C The petitioner thereafter submitted an application praying for furnishing a copy of the questions prepared by the Trial Court prior to examination under Section 313 Cr.P.C with prayer to permit the accused petitioner to file written statement in compliance of the provision under Section 313(5) Cr.P.C so as to enable him to fully understand the questions and explain the incriminating materials against him. The Trial Court however, declined the request of the accused petitioner on the ground that the questions prepared were not yet final as the prosecution and the defense counsel are yet to suggest the relevant questions. However, the accused Petitioner was permitted to submit written statement and the fixed the case on 20.07.2017 for examination of the accused under Section 313 Cr.P.C
4. On 20.07.2017 the prayer was again made on behalf of the accused Petitioner for supplying questions to be put to the accused before examining him under Section 313 Cr.P.C However, that prayer was rejected by the learned Special Judge vide order 20.07.2017 and the Ld. Special Judge, proceeded to examine the accused Petitioner under Section 313 Cr.P.C and thereafter, the Court fixed 04.08.2017 for recording of evidence of the defense. It is this order passed on 20.07.2017 denying supply of questions prepared by the Court for examination of the accused Petitioner under Section 313 of the Cr.P.C that has been challenged in this petition.
5. Several grounds have been raised in challenging the aforesaid order. It has been strenuously argued by Mr. Gunedhor, learned counsel for the Petitioner that Section 313 Cr.P.C had been amended by Cr.P.C inserting Sub-clause 5 by the Criminal Procedure Code Amendment Act 5 of 2009 for the purpose of giving opportunity to the accused to file written statement on the basis of questions that may be put by the Court, which could be effective only when question prepared by the Court are furnished to the accused. It has been contended that denial on furnishing the questions prepared by the Court to the accused on the basis of which the accused can submit effective written statement as regards the incriminating materials against him, would amount to denial of a valuable right of the accused which would be against fair trial. It has been submitted that the object of Section 313 Cr.P.C is to give opportunity to the accused to enable to explain any inculpatory evidences adduced against him and as such, denial of furnishing to the accused of questions prepared by the Court would amount to denial of fair trial. Denial of questions prepared by the Court would effectively amount to denial of opportunity to file proper written statement to explain the incriminating materials against the accused. Accordingly, it has been submitted that such denial would cause serious miscarriage of justice.
6. Mr. Athouba Khaidem, learned GA, however, submits that reading of the Section 313 Cr.P.C would clearly show that it is not a mandatory provision and it would be left to discretion of the Court as to whether the Court should provide the questions prepared to the accused in advance and also whether the written statement should be allowed to be filed by the accused. It has been submitted that since the accused Petitioner had been examined by the Court where he was given proper opportunity to explain the incriminating evidences against him, no prejudice can be said to have caused to him.
7. Heard learned counsel for the parties and perused the materials on record.
8. In order to appreciate the issues raised in this petition, it may be necessary to examine the scope and purpose of Section 313 Cr.P.C which would help us to understand the requirement of Sub-Section 5 of Section 313 Cr.P.C.
9. The reason for examination of the accused as stated in the Section itself is for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him in course of the trial.
10. Section 313 Cr.P.C reads as follows:
“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.”
11. The analogous section in the earlier Code of Criminal Procedure, 1898 was Section 342 thereof. The Hon'ble Supreme Court in the case of Basavaraj R. Patil v.State of Karnataka, (2000) 8 SCC 740 dealt with the scope of Section 313 Cr.P.C by tracing the development of law in this regard, wherein the issue arose as to whether, when a criminal Court completes prosecution evidence (other than in a summons case) is it indispensably mandatory that the accused himself should be questioned and whether the Court can allow the advocate to answer the questions on behalf of the accused at least in some exigent conditions. While dealing with the said issues, the Hon'ble Supreme Court referred to the analogous provision, i.e, Section 342 under earlier Code of Criminal Procedure 1898 and the recommendation of the Law Commission in its 41st Report. It was provided under Section 342 of the old Code of 1898 as follows:
“342. (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the court may, at any stage of any inquiry or trial, without previously warning the accused, put such questions to him as the court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
(2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the court and the jury (if any) may draw such inference from such refusal or answers as it thinks just.
(3) 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.
(4) No oath shall be administered to the accused when he is examined under sub-section (1).”
12. At the relevant time when the old Code of 1898 was in operation, there was no provision for the accused to give evidence on oath as presently provided under Section 315 of the present Code of Criminal Procedure, 1973. Subsequently, the Parliament introduced Section 342-A in the old Code of 1898 enabling the accused to offer himself to be examined as a witness if he wanted as now available under Section 315 of the present Code of 1973.
13. Considering the various decisions rendered by the Courts relating to the questioning of the accused after the evidence of the prosecution, the Law Commission in its 41st Report recommended as reflected in para no. 13 of the judgment in Basavaraj (supra), which is reproduced herein below:
“13. The Law Commission in its 41st Report considered the aforesaid decisions and also various other points of view highlighted by legal men and then made the report after reaching the conclusion that:
(i) in summons cases where the personal attendance of the accused has been dispensed with, either under Section 205 or under Section 540-A, the court should have a power to dispense with his examination; and
(ii) in other cases, even where his personal attendance has been dispensed with, the accused should be examined personally.”
14. It is the aforesaid recommendation which has been incorporated in the present Code of 1973 as provided under Section 313 as quoted above.
15. The Hon'ble Supreme Court in Basavaraj (supra) then proceeded to examine the purpose of the provision of Section 313 of the Cr.P.C which is mainly for the benefit of the accused to afford him the opportunity to explain himself as regards the evidences against him in the following words:
“19. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.
20. At the same time it should be borne in mind that the provision is not intended to nail him 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 Section 313 of the Code indicates, without any doubt, 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.”
16. The Hon'ble Supreme Court in the said case of Basavaraj (supra) keeping in mind the changes in technology and in other areas, took the view that the rigours of requirement of the accused to be personally present for being examined under Section 313 Cr.P.C could be relaxed under certain circumstances.
17. It was accordingly, held that:
“24. We think that a pragmatic and humanistic approach is warranted in regard to such special exigencies. The word shall in clause (b) to Section 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 cases, 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 Section 313 of the Code in a substantial manner. How this could be achieved”
25. 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 following 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.
(c) An undertaking that he would not raise any grievance on that score at any stage of the case.
26. If the court is satisfied of the genuineness of the statements made by the accused in the said application and affidavit it is open to the court to supply the questionnaire to his advocate (containing the questions which the court might put to him under Section 313 of the Code) 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. He should affix his signature on all the sheets of the answered questionnaire. However, if he does not wish to give any answer to any of the questions he is free to indicate that fact at the appropriate place in the questionnaire [as a matter of precaution the Court may keep photocopy or carbon copy of the questionnaire before it is supplied to the accused for answers]. If the accused fails to return the questionnaire duly answered as aforesaid within the time or extended time granted by the court, he shall forfeit his right to seek personal exemption from court during such questioning.
27. In our opinion, if the above course is adopted in exceptional exigency it would not violate the legislative intent envisaged in Section 313 of the Code.”
18. Thus it has been held that under certain exigent circumstances, the trial Court may allow the accused to answer the questions put to the accused under Section 313 Cr.P.C through his advocate in a written form by way of affidavit, instead of answering in the Court by his physical presence. Moderation in the above procedure by exempting personal presence of the accused in the Court has been allowed so as to afford the accused the opportunity to explain the evidences against him, which otherwise would not have possible or would have occasioned delay if his presence was insisted upon. The prime concern of the Court as to ensure that principle of natural justice is complied by allowing the accused to answer in writing through his advocate in his absence. Thus, the benefit or the right of the accused was the main consideration while interpreting the rigours of Section 313 of Cr.P.C
19. The importance of the right of the accused to explain as provided under Section 313 Cr.P.C has been highlighted in a number of decisions. In a recent decision of the Hon'ble Supreme Court in Nar Singh v. State of Haryana, (2015) 1 SCC 496, the importance of Section 313 has been exhaustively dealt with. It has been held that,
“11. The object of Section 313(1)(b) CrPC is to bring the substance of accusation to the accused to enable the accused to explain each and every circumstance appearing in the evidence against him. The provisions of this section are mandatory and cast a duty on the court to afford an opportunity to the accused to explain each and every circumstance and incriminating evidence against him. The examination of the accused under Section 313(1)(b) CrPC is not a mere formality. Section 313 CrPC prescribes a procedural safeguard for an accused, giving him an opportunity to explain the facts and circumstances appearing against him in the evidence and this opportunity is valuable from the standpoint of the accused. The real importance of Section 313 CrPC lies in that, it imposes a duty on the court to question the accused properly and fairly so as to bring home to him the exact case he will have to meet and thereby, an opportunity is given to him to explain any such point.
12. Elaborating upon the importance of a statement under Section 313 CrPC, in Paramjeet Singh v. State of Uttarakhand4, this Court has held as under: (SCC p. 449, para 22)
“22. Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination under Section 313 CrPC cannot be used against him and have to be excluded from consideration. (Vide Sharad BirdhichandSarda v. State of Maharashtra5 andState of Maharashtra v. Sukhdev Singh6.)”
13. In Basava R. Patil v. State of Karnataka, (2000) 8 SCC 740, this Court considered the scope of Section 313 Cr.P.C and in paras (18) to (20) held as under:
“18. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the 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”. In Jai Dev v. State of Punjab (AIR 1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with. He observed thus:
“The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to enquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity.”
19. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.
20. At the same time it should be borne in mind that the provision is not intended to nail him 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 Section 313 of [pic]the Code indicates, without any doubt, 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 subsection 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.”
14. Main contention of the appellant is that since the material evidence Ex-P12 and Ballistic Expert opinion was not put to him in his statement under Section 313 Cr.P.C, it must be completely excluded from consideration and barring the same, there is no other evidence to sustain the conviction and reliance was placed upon Avtar Singh v. State of Punjab, (2002) 7 SCC 419.
15. In Avtar Singh's case, when the accused were examined under Section 313 Cr.P.C, the essence of accusation, particularly the possession of goods was not brought to their notice. It was also noticed that the possibility of the accused persons being labourers of the truck was not ruled out by evidence. Avtar Singh's case was rendered on consideration of several peculiar factual aspects of that case and it does not lay down the law of universal application as it had been decided on its own facts.
16. Undoubtedly, the importance of a statement under Section 313 CrPC, insofar as the accused is concerned, can hardly be minimised. The statutory provision is based on the rules of natural justice for an accused, who must be made aware of the circumstances being put against him so that he can give a proper explanation to meet that case. If an objection as to Section 313 CrPC statement is taken at the earliest stage, the court can make good the defect and record additional statement of the accused as that would be in the interest of all. When objections as to defective Section 313 CrPC statement is raised in the appellate court, then difficulty arises for the prosecution as well as the accused. When the trial court is required to act in accordance with the mandatory provisions of Section 313 CrPC, failure on the part of the trial court to comply with the mandate of the law, in our view, cannot automatically enure to the benefit of the accused. Any omission on the part of the court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused. Insofar as non-compliance with mandatory provisions of Section 313 CrPC is concerned it is an error essentially committed by the learned Sessions Judge. Since justice suffers in the hands of the court, the same has to be corrected or rectified in the appeal.
17. So far as Section 313 CrPC is concerned, undoubtedly, the attention of the accused must specifically be brought to inculpable pieces of evidence to give him an opportunity to offer an explanation, if he chooses to do so. A three-Judge Bench of this Court in Wasim Khan v. State of U.P10 and Bhoor Singh v. State of Punjab11 held that every error or omission in compliance with the provisions of Section 342 of the old CrPC does not necessarily vitiate trial. The accused must show that some prejudice has been caused or was likely to have been caused to him.”
20. It has been also held that omission to put proper questions to the accused relating to the incriminating materials against the accused may also vitiate the trial if the accused is able to show that he had suffered prejudice leading to miscarriage of justice. Thus in Asraf Ali v. State of Assam, (2008) 16 SCC 328 when it was found that the provsions of Section 313 Cr.P.C was perfunctorily followed, the trial was set aside, by holding that:
“26. As rightly contended by learned counsel for the appellant no witness has stated that on the date of occurrence the accused had caused severe injury to the deceased by assaulting him on the head from behind. The circumstances which were relied upon by the trial court to find the accused guilty were not specifically brought to the notice of the accused. Therefore, in essence, his examination under Section 313 of the Code was rendered an empty formality. On that count alone, the impugned judgment of the High Court cannot be sustained and is set aside. The conviction recorded stands set aside…..”
21. From the above, what one can gather is that Section 313 Cr.P.C a very significant procedure in a criminal trial which is for the benefit of the accused to enable him to explain the incriminating evidences which have been brought on record against him through the prosecution witnesses and this provision forms a crucial part of the principle of natural justice in the criminal justice system.
22. The development of law relating Section 313 Cr.P.C would indicate that the Courts have given a liberal interpretation for the benefit of the accused to ensure fair trial.
23. Keeping the above in mind, we may now consider the issue raised in this petition. The accused Petitioner is under judicial custody and the evidences were adduced by the prosecution in his presence. At the time of accused examination under Section 313 Cr.P.C the accused was very much present in the Court. It is not a case where the accused is seeking any exemption of his personal presence from the Court and give answers to the questions of the Court through his advocate in writing as was the case in Basavaraj (supra). What he claims is that he should be furnished the questions framed by the Court in advance so that he can give his replies by way of written statement. The trial Court refused his request on the ground that it is not tenable in the eyes of law by holding that, “The prayer of the Ld. Counsel of the accused for supplying the question prepared by the Court for his preparation of W/S accused examination of accused u/s 313 cannot be done before filing of w/c of the accused is completely untenable in the eye of law.”
24. The issue raised in this case, therefore is, when an accused is already present in the Court to face questions under Section 313 Cr.P.C, is he entitled to get the questions prepared by the Court in advance and to furnish answers to those questions by filing written statement rather than answer them orally before the Court as sought by the petitioner?
25. As discussed above, the main objective for examination of an accused under Section 313 of the Cr.P.C is for the purpose of enabling the accused to explain personally any circumstances appearing in the evidence against him. This provision has been incorporated in the criminal procedure code mainly for benefit the accused by affording him all the opportunities to defend himself after being confronted with incriminatory evidences and to ensure a fair trial. It is thus to enable the accused to explain any inculpatory evidence which has been adduced against him and to comply with the most salutary principle of natural justice as enshrined in the maxim, audi alteram partem.
26. Normally, examination of the accused under Section 313 of Cr.P.C is to be made by the Court when the accused is physically present in the Court. However as provided under proviso to clause (b) of Sub-Section 1 of Section 313 Cr.P.C in summons case where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). Thus while in summons case the Court may dispense with the personal attendance, there is no such provision for dispensation of personal attendance of the accused in other cases. However, the Hon'ble Supreme Court in Basavaraj case (supra) after considering the development of law in this regard has liberally interpreted the provision of Section 313(1)(b) Cr.P.C to hold that under certain circumstances even in warrant cases, the Court may dispense with the personal presence of the accused where the accused is already exempted from personal presence, provided he makes application to the Court justifying the reasons thereof.
27. Thus, normally in a non-summons case or warrant case, the accused has to be personally present at the Court at the time of examination under Section 313 of the Cr.P.C However the personal presence can be dispensed with under the circumstances as mentioned above and the accused may submit his answers to the quarries of the Court by submitting an affidavit. The aforesaid interpretation by the Court has been acknowledged now by the Parliament with the insertion of Sub-Section 5 to Section 313 of Cr.P.C by the Amendment Act 5 of 2009, by providing that Court may permit submission of filing written statement by an accused and it will amount to sufficient compliance of the provision under Section 313 Cr.P.C It has been further provided that while framing relevant questions which are to be put to the accused the Court may take help of Prosecutor and Defence Counsel. This is obviously intended to narrow down the questions to the relevant questions only and to avoid any ambiguity and also vagueness so that precise and specific allegations against the accused which are relevant to the trial which have come up against the accused in evidence may be brought to the notice of the accused so that he can give his reply. Consultation with the Defence Counsel is therefore, very significant, which law did not contemplate earlier. Consultation with the Defence Counsel is to enable the Court to understand what the according to the accused considers such evidences prejudicial to him which the accused may like to clarify. Thus, incorporation of Sub-Section 5 in Section 313 Cr.P.C is to ensure that the trial does not get vitiated at a later stage for the reason that important and relevant question were not put to the accused at the time of examination under Section 313 Cr.P.C. Therefore, consultation with the Prosecution and even the Defence Counsel has been permitted to the Court while framing relevant questions. The newly inserted Sub-Section 5 also permits the accused to file written statement to the questions that may be put to him by the Court. It is to be noted that nothing is provided under Sub-Section 5 of Section 313 Cr.P.C or any other provision that if the accused had answered orally to the questions put him by the Court, he cannot file any written submission.
28. At the stage of accused examination under Section 313 Cr.P.C, it is the duty of the Court to put all the relevant questions in the light of the incriminating evidences brought against the accused by the prosecution. It is therefore, incumbent upon the Court to draw attention to the accused all the inculpatory evidences against the accused, so as to enable him to answer or explain to the Court the circumstances which are against him. The Courts have repeatedly emphasized that the objective of Section 313 Cr.P.C is to afford all the reasonable opportunities to the accused to explain himself against the incriminating evidences that have been adduced against him, to ensure a fair trial. The purpose of Section 313 Cr.P is to be enable the accused to be aware of the incriminating evidences against him so that he can explain his position clearly and defend himself properly.
29. If these are the basic purposes of Section 313 Cr.P.C, if the accused wants the questions prepared by the Court in advance, it cannot be said to be unreasonable. After all, the accused has to be afforded the full opportunity to explain the inculpatory evidences emerging against him after the Prosecution has led the evidence.
30. As held by the Hon'ble Supreme Court in Basavaraj (supra) submission of written statement by an accused, not only helps the accused but also would save precious time of the Court and overcome inconveniences where the accused for various reasons is not able to present himself in the Court. The situation contemplated in Basavaraj (supra) has been duly taken care of by the Parliament by inserting Sub-Section 5 to Section 313 Cr.P.C While giving statutory recognition to the judicial interpretation of Section 313 Cr.P.C in the Basavaraj (supra), the Parliament has not confined to only such situations dealt in the said case. By using very generalised language in the statute, in the opinion of this Court, the situation as arising in the present case is also covered by Sub-Section 5 of Section 313. There is no restrictive language used to conclude that provisions of Sub-Section 5 will not apply where the accused is already present before the Court and that the accused cannot ask for the questions to be put by the Court in advance so that he can file written statement thereafter. Of course, the language used in Sub-Section 5 shows that it is the discretion of the Court as to whether the Court will consult the Prosecution and the Defence Counsel while framing the relevant questions and also whether the accused can file written statement. It is not mandatory on the part of the Court to invariably consult the Prosecution and the Defence Counsel while framing questions and also to allow the accused to submit his answers by written statement. If the Court is of the view that, consultation with the Prosecution or the Defence Counsel while framing the questions is not necessary, it can proceed to frame the questions on its own and it cannot be a ground for interfering the trial unless non questioning on any crucial evidence has caused prejudice to the accused. Similarly, if the Court takes the view that the accused is insisting on questions to be furnished in advance and file written statement in order to delay the proceedings and such request is vexatious, the Court for good reasons may deny the said request of the accused. The Parliament has used the word “may” in Sub-Section 5 of Section 313 of Cr.P.C unlike “shall” in Sub-Section 1(b). Even where the word “shall” has been used, the Hon'ble Supreme Court in Basavaraj (supra) has diluted the mandatory nature of the provision as discussed above. This Court is of the view that considering the significance and salutary nature of the procedure contemplated under Section 313 of the Cr.P.C it will be always desirable that the Court consults the Prosecution and Defence Counsel while framing the relevant questions and also give opportunity to the accused to submit his written statement if he desires, even if he has answered the questions orally before the Court. Allowing the accused to know the questions in advance so that he can file his written statement will not cause any prejudice to anyone as these questions will be based on evidences already on record, but will further the cause of justice by affording the accused all the opportunities to defend himself properly, unless the Court finds it to be vexatious or will delay the trial.
31. It is to be noted that under Section 232 of the Cr.P.C in respect of trial before a Court of Session, if after taking evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.
32. It has been further provided under section 233 of the Code that where the accused is not acquitted under Section 232 Cr.P.C, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
33. It may be also noted that in respect of warrant cases by Magistrates, under Section 243(1) of Cr.P.C when the accused is called on to enter his defence, the accused may put in any written statement which shall be filed on record.
34. Thus, filing of written statement has been permitted under the Code so as to afford the accused all the opportunities to defend himself and prove his innocence.
35. There is nothing under Sub-Section 5 of Section 313 Cr.P.C which prevents the accused to submit to file written statement even after being examined orally by the Court. As mentioned above the provisions of Section 313 Cr.P.C have been incorporated mainly to provide ample opportunity to the accused to explain himself and to prove his innocence in the light of the incriminating evidences which have been adduced against him during the examination of prosecution witnesses. This opportunity to explain himself is in addition to the right of the accused to adduce his own defence witness under Section 233 or Section 243 Cr.P.C as the case may be. The legislature by inserting Sub-section 5 to Section 313 Cr.P.C intended to facilitate furnishing of answers to the questions put by the Court to the accused even when the accused is not physically present in the Court by filing written statement. It is however, not restricted only to such cases where the accused is for any reason not able to present at the Court. There is nothing in the section or any other provision under the code which debars submission of written statement by an accused who is already present in the Court to face the questions of the Court. Therefore, this Court is of the view that if any accused desires to file a written statement to the questions put by the Court, he cannot be denied this right. As already mentioned above, under Section 243(1) of the Cr.P.C, the accused who is involved in a trial of warrant case instituted on police report can submit any written statement before the magistrate. Therefore, permitting an accused to submit his written statement even at the time of accused examination under Section 313 Cr.P.C cannot be said to be an alien concept.
36. Consequently, if an accused has a right to file a written statement at the time of examination under Section 313 Cr.P.C as a corollary, it follows that the accused would have the right to be furnished with the questions in advance so that he can submit his written statement. It is only after the accused has been furnished with the questions of the Court that he can file his written statement. This Court is, accordingly, of the view that furnishing of questions prepared by the Court to the accused to enable the accused to file his written statement under Section 313 Cr.P.C should be normally allowed by the trial Court, unless, the Court is of the view that such request has been made to delay the trial or is vexatious and not warranted under the circumstances, as it is the discretion the Court.
37. In fact, the questions that are to be put by the Court are to be relevant to the issues involved in the trial and related to the incriminating materials and evidences already adduced against the accused and on record, and hence no prejudice can be said to be caused to anybody by disclosing the questions prepared by the Court to the accused in advance so that he can file his written statement.
38. Accordingly, this Court is of the view that the learned Special Judge ought to have furnished copies of the questions prepared by the Court which were put to the accused so as to enable him to file his written statement in answer to the said questions.
39. In the present case, it has been noted that the accused Petitioner has been already examined under Section 313 Cr.P.C and as such he is already aware of the questions put to him by the Court. As such, he would be at liberty to file his written statement to the questions already put by the Court to him irrespective of the oral answers the accused has already given to the Court.
40. For the reasons discussed above, this Court holds that ordinarily, an accused is entitled to be furnished in advance, if he makes a request, of the questions to be put by the Court for the purpose of accused examination under Section 313 of the Cr.P.C and he can file his written statement in addition to any oral answers given before the Court which request can be declined by the Court if the same has been done to delay the trial or is vexatious or for such germane reasons.
41. Accordingly, the impugned order dated 20.07.2017 is interfered to the extent indicated above.
42. In the present case since the accused Petitioner has already been examined under Section 313 Cr.P.C, the Petitioner would be entitled to file his written statement if he so desires. The trial will proceed accordingly, after filing of written statement by the Petition within a specified time to be fixed by the Court.
43. Petition stands allowed to the extent indicated above.
———
4 (2010) 10 SCC 439
5 (1984) 4 SCC 116
6 (1992) 3 SCC 700
10 AIR 1956 SC 400
11 (1974) 4 SCC 754
No comments:
Post a Comment