Kulkarni R V vs Dakshina Murthy

Office at I.T.I Corporation Office, Magrath Road, Next Hosmat Hospital, Bangalore-560 025. ...RESPONDENT

(Service of Notice to Respondent is held sufficient vide order dated 16.11.2011 )

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This Criminal Revision Petition is filed under Section 401 Crimial Procedure Code, 1973, by the advocate for the petitioner praying that this Hon'ble Court may be pleased to set aside the judgment and order dated 25.2.2010 in Criminal Appeal No.1866/2006 passed by the Presiding Officer, Fast Track Court-VIII, Bangalore City, by setting aside the judgment and order dated 31.10.2006 passed by the XXII Additional Chief Metropolitan Magistrate and XXIV Additional Small Causes Judge, Bangalore, in C.C.No. 35956/2002 and remanding the same for fresh trial.

This Criminal Revision Petition is coming on for Orders, this day, the court made the following:

ORDER

Heard the learned counsel for the petitioner.

2. The complainant before the trial court alleged commission

of an offence punishable under Section 138 of the Negotiable

Instruments Act, 1881 (hereinafter referred to as the 'NI Act' for

brevity) by the respondent herein. The respondent having entered 3

appearance had contested the proceedings. After the trial, the court

had allowed the complaint and convicted the respondent for an

offence punishable under Section 138 of the NI Act and sentenced him

to pay a fine of Rs.2,00,000/- and in default to undergo simple

imprisonment for 12 months, out of which, the entire fine amount

was to be paid by way of compensation to the present petitioner. That

judgement was challenged before the appellate court, primarily on the

ground that the trial court had failed to examine the respondent as

contemplated under Section 313 of the Criminal Procedure Code,

1973 (hereinafter referred to as ' the Cr.PC' for brevity). The

appellate court has summarily allowed the appeal after taking notice

of the fact that the appellant had not been examined and his statement

has not been recorded under section 313 of the Cr.PC. The said

judgment was questioned before this court in Criminal Revision

Petition No.849/2006, which was heard and rejected. During the

pendency of the trial, the matter was referred to Lok Adalath at the

instance of the accused. However, he failed to appear before the Lok 4

Adalath and the matter was referred back to this court and inspite of

several opportunities having been granted, the counsel appearing for

the respondent - accused had abandoned the proceedings. The court,

after futile efforts to secure the presence of the respondent, had

proceeded further and accordingly had, on the basis of the evidence

tendered by the petitioner herein, again convicted the accused

similarly as earlier and fined him. The same having been questioned

yet again, by way of an appeal, the appellate court has reiterated its

earlier opinion that the matter could not have been disposed of

without recording the statement of the respondent - accused under

Section 313 of the Cr.P.C. It is that which is under challenge in

the present proceedings.

3. The notice of the petition having issued to the respondent,

service on the respondent has been held sufficient by an order dated

16.11.2011. Thereafter, a non-bailable warrant having been ordered

by this court, to secure the presence of the respondent, the same could

not be effected by the jurisdictional police on the ground that he was 5

not traceable. It was the repeated submission of the counsel for the

petitioner, that the respondent was effectively dodging the service of

summons on account of the fact that his brother was a practising

advocate and he was actively assisting him in avoiding such service.

Therefore, this court having issued further directions to the

jurisdictional Police, the police have candidly expressed that it is not

possible to serve notice as the respondent is not available at the

address furnished. It is in this background that, the learned counsel

would submit that, the service of notice having been held sufficient by

this court earlier and in view of the successful avoidance of such

service by the respondent, it would be futile to carry on the exercise of

making further attempts to serve the respondent and seeks that the

petition be considered on merits.

4. Insofar as the non-compliance with reference to section 313

of the Cr.P.C., is concerned, the learned counsel would submit that

the position in law is settled by a decision of a three-judge bench of

the Supreme Court in the case of Basavaraj R Patil vs. State of 6

Karnataka, (2000)8 SCC 740 and would draw attention to the relevant

portion. The apex court, has extracted the text of Section 313 of the

Cr.P.C, which this court may also usefully reproduce :

"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 his 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 7

which such answers may tend to show he has committed."

The apex court has also drawn attention to the forerunner of the

said provision, namely, Section 342 of the Code of Criminal

Procedure,1898 and Section 342A as well, and has pointed out that a

three-Judge Bench of the apex Court, in Hate Singh Bhagat Singh and

State of Madhya Bharat, while dealing with the position, as the

section has remained in the original form in the old Act, has

interpreted the Section, as follows:

" The statements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness-box. They have to be received in evidence and treated as evidence and be duly considered at the trial."

Thereafter, Section 342A having been incorporated, another

three-Judge Bench in Bibhuti Bhysan Das Gupta vs. State of West

Bengal, AIR 1969 SC 381, has expressed thus:

8

"12. ............... "Under Section 342-A only the accused can give evidence in person and his pleader's evidence cannot be treated as his. The answers of the accused under Section 342 is intended to be a substitute for the evidence which he can give as a witness under Section 342-A. The privilege and the duty of answering questions under Section 342 cannot be delegated to a pleader. No doubt the form of the summons show that the pleader may answer the charges against the accused, but in so answering the charges, he cannot do what only the accused can do personally. The pleader may be permitted to represent the accused while the prosecution evidence is being taken. But at the close of the prosecution evidence the accused must be questioned and his pleader cannot be examined in his place."

Thereafter, there is reference to the Law Commission's 41 st

Report wherein it is concluded thus:-

"(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."

9 This has been followed by the Parliament while enacting

Section 313 of the Criminal Procedure Code, 1973, as is presently

worded.

In Basavaraj R Patil, supra, the three-Judge Bench has

expressed that it would appear prima facie that the Court has

discretion to dispense with the physical presence of an accused during

such questioning only in summons cases. In all other cases, it is

incumbent on the court to question the accused personally after

closing the prosecution evidence. Nonetheless, the Law Commission

was conscious that the rule may have to be relaxed eventually,

particularly, when there is improvement in literacy and legal-aid

facilities in the country.

The three-Judge Bench, in Basavaraj, supra, also took note of

the decision of a three-Judge Bench in Shivaji Sahabrao Bobade vs.

State of Maharashtra, (1973)2 SCC 793, wherein it was observed as

follows:-

" It is trite law, nevertheless fundamental, that the 10

prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction."

Thereafter, the court has posed to itself the question as to what

is the object of examination of the accused under Section 313 of the

Criminal Procedure Code, 1973 and has answered thus:- 11

"18. ............ 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 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 inquire 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.

12

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."

5. In other words, the learned Counsel would point out that the

law, as settled by the above decision, would be that the provision is

mainly intended to benefit the accused and as its corollary to benefit

the court in reaching the final conclusion. It is possible that one

category of offences, which is specifically exempted from the rigour

of Section 313(1)(b) of the Code, are summons cases. Thus, all other

offences generally belong to a different category altogether, among

which are included offences punishable with varying sentences from 13

imprisonment for three years up to imprisonment for life and even

right up to the death penalty. Hence, there are several offences in that

category which are far less serious in gravity compared with grave

and very grave offences. Even in cases involving less serious

offences, it is available for the court to exempt the accused from

appearance on his application and it can be overlooked and he can be

represented by a counsel on his application. It is in this vein that the

law has been laid down.

6. In the instant case on hand, the question would be whether

injustice has occasioned on account of the non-recording of the

statement of the accused in terms of Section 313 of the Cr.PC. As is

evident from the material on record, the accused had at all points of

time, attempted to misuse the process of the court in partially

seeking to defend himself and thereafter abandoning the proceedings

and after having suffered an order of conviction proceeding to

challenge the same in appeal, and having raised the grounds on which 14

the prejudice was sought to be pleaded and the appellate court having

allowed the appeal, it was incumbent on the respondent - accused to

have availed of the opportunity to appear before the court and to

explain the circumstances that seem to appear against him before the

trial court. However, the accused did not choose to do so on the

matter having been remanded to the trial court. Now again, the same

tactics having practised by the respondent in having firstly remained

indolent before the trial court in not having contested the

proceedings and thereafter having filed an appeal on the very ground

that was urged earlier and the appellate court having summarily

allowed the appeal would, in effect, defeat the very proceedings that

had been legitimately instituted by the petitioner and hence the

impugned judgment of the appellate court completely overlooks the

conduct of the respondent in mechanically applying the law, that

non-recording of the statement under Section 313 of the Cr.PC, would

vitiate the proceedings. Having regard to the tenor of the judgments

referred to hereinabove, which has explained the scope and object of 15 Section 313 of the Cr.P.C., there is no injustice occasioned in the

present case on hand, with the statement of the accused not having

been recorded under Section 313 and hence, he would submit that the

petition be allowed and the judgment of the trial court be affirmed.

7. In the above facts and circumstances, the scope and object of

Section 313 of the Cr.PC ought to have been kept in view by the court

below having due regard to the nature of the case that was involved

and the circumstances that could possibly be sought to be explained

by the accused as appearing against him. It was for the accused to

have appeared before the court and to have defended himself

effectively and to make himself available for the court, to record the

statement under Section 313 of the Cr.PC. As already pointed out, the

accused - respondent did or did not choose to appear before the

courts below, according to his convenience. In that view of the

matter, the respondent having effectively taken advantage of the legal

position, notwithstanding that he may not have been entitled to such 16

reliefs before the court below in the two appeals that he had

preferred during the course of these proceedings. There is no

justification in the appellate court having held that there is failure of

justice on account of the statement of the respondent - accused not

having been recorded under Section 313 of the Cr.PC. Having due

regard to the fact that this was a summons case and the respondent

himself was to blame for non-compliance with the said provision, no

fault could be found either with the petitioner or the trial court. In that

view of the matter, the petition is allowed. The judgment of the trial

court is affirmed.

Sd/-

JUDGE

nv