HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on: 26.07.2017
Delivered on: 25.08.2017
Case :- CRIMINAL REVISION No. – 2979 of 2011
Revisionist :- Dr. Yuvraj Singh And Anr.
Opposite Party :- State Of U.P.
Counsel for Revisionist :- Vijaya Prakash
Counsel for Opposite Party :- Govt. Advocate,Ashutosh Yadav,K.K. Dwivedi
Hon’ble Harsh Kumar,J.
Heard Sri Vijay Prakash learned counsel for the revisionists, Sri Ashutosh Yadav learned counsel for opposite party no. 2 and learned A.G.A. and perused the record.
This revision has been filed against the judgment and order dated 30.06.2011 passed by Additional Sessions Judge/Special Judge Anti Corruption (C.B.I.) Ghaziabad in Criminal Appeal No.30 of 2009, arising out of Criminal Case No. 2223 A of 2006, Case Crime No. 4 of 1998, under Section 498A I.P.C. and Section ¾ Dowry Prohibition Act, P.S. Vijai Nagar, District Ghaziabad by which the judgment and order of conviction of appellants dated 06.03.2009 passed by Magistrate, was set aside and the matter was remitted back to the Magistrate for disposal in the light of the observations made in the body of the judgment and in accordance with law.
Feeling aggrieved, the accused have preferred this revision.
The learned counsel for the revisionists contended that the revisionists are mother-in-law and father-in-law of the victim and have been falsely implicated in Case Crime No. 04 of 1998 under Sections 498-A, 323/34, 354, 506, I.P.C. Section ¾ Dowry Prohibition Act; that the learned Magistrate in final disposal of trial, vide order dated 06.03.2009 convicted the revisionists and sentenced them for offences under Section 498-A I.P.C. and Section ¾ Dowry Prohibition Act with simple imprisonment for a period of six months and fine of Rs. 2000/- each under Section 498-A I.P.C. and with similar punishment under Section 4 of Dowry Prohibition Act; that the FIR of the case has been lodged by opposite party no.2 as a matter of counter blast, after service of notice for restitution of conjugal rights dated 16.06.1998 by her husband, through application under Section 156(3) Cr.P.C. dated 07.08.1998, with absolutely wrong and baseless allegations of victim having been ousted from her matrimonial house on 24.09.1997; that the husband of victim has filed a petition under Section 9 of the Hindu Marriage Act against her for a decree of restitution of conjugal rights; that the FIR has been lodged by sheer misuse of the provisions of Section 156(3) Cr.P.C. but learned Appellate Court acted wrongly is not considering this point; that apart from it, the learned Appellate Court has come to the conclusion that there was defective examination of accused-revisionists under Section 313 Cr.P.C. which has caused prejudice to their rights; that defective examination of accused under Section 313 Cr.P.C. vitiates the trial and the appellate court ought to have been acquitted the revisionists of the charges framed against them; that the Appellate Court had no jurisdiction to remand the matter for de novo trial on the ground of defective examination of accused under Section 313 Cr.P.C; that the de novo trial could not have been directed and the appellate court has committed mistake in passing the impugned order for de novo trial by the Trial Court; that the impugned order passed by Appellate Court is liable to be set aside and revisionists are liable to be acquitted.
He has placed reliance on the recent judgment of Apex Court in the case of Ajay Kumar Ghosal Vs. State of Bihar and another, AIR 2017 SC 804 or 2017 Cr.L.J 1428, contending that in above case, it has been held that the provisions Section 386(b) Cr.P.C. should not be exercised in routine manner and the guiding factor for re-trial must always be the demand of justice.
Per contra, learned A.G.A and learned counsel for the opposite party no. 2 Smt. Kamlesh supported the impugned judgment and order of remand and contended that the revisionists did not raise any plea about defective examination under Section 313 Cr.P.C. in appeal and since on the above point, a finding has been given by the Appellate Court suo-motu, raising of this plea through this revision is not permissible under law; that by the impugned order, the Appellate Court has not directed de novo trial or fresh trial after recording entire evidence of prosecution witnesses again, rather has made following specific observations that;
“मै न्यायहित में यह उचित समझता हूँ कि मामला विद्वान अवर न्यायालय को इस आशय के प्रति प्रेषित किये जाने योग्य है कि वह अपीलार्थीगण/अभियुक्तगण के बयान अन्तर्गत धारा 313 जा० फौजदारी उपरोक्तानुसार लिया जाना सुनिष्चित करे और उसके बाद विद्वान मजिस्ट्रेट अपना निर्णय पारित करें इन परिस्थितियों में अन्य बिंदुओं पर fofu’p; देने का औचित्य नहीं पाया जाता है”
and has passed the order remitting to court below for disposal in view of the observations made in the judgment and in accordance with law; that in the circumstances, the impugned order may not be considered to be an order of remand for de novo trial afresh; that in the case of Narsingh Vs. State of Haryana (2015) 1 SCC 496, it has been held by the Apex Court that in case, the Appellate Court finds defective examination of accused under Section 313 Cr.P.C., it has power to remand the case for retrial from that stage of recording of statement under Section 313 Cr.P.C. and such order of remand cannot be said to have been passed for filling up alleged lacuna in the prosecution case.
Upon hearing the parties counsel and perusal of record, on the Ist point of argument advanced on behalf of revisionists regarding misuse of provisions of Section 156(3) Cr.P.C. by opposite party no. 2 first informant, it is pertinent to mention that by the impugned order, the appeal of revisionists against their conviction has been allowed and matter has been remanded, on a limited point for recording statements of accused revisionists under Section 313 Cr.P.C. afresh and thereafter to decide the case in accordance with law. Since the appeal of revisionists has been allowed so they may be considered to be aggrieved only with the part of order of remand, and have no right to raise such an issue for the first time in revision as the scope of this revision is limited only to the legality and correctness of the order of remand and not otherwise.
The judgment dated 19.03.2015 of Apex Court in Criminal Appeal No. 781 of 2012 in the case of Mrs. Priyanka Srivastava and another Vs. State of U.P., observing misuse of provisions of Section 156(3) Cr.P.C. relied by revisionists is based on altogether different facts and has no application in this case.
In above judgment the Apex Court has only raised concern over the kind of applications being filed under Section 156(3) Cr.P.C. in routine manner without taking responsibility whatsoever, only to harass certain persons and emphasized that application under Section 156(3) Cr.P.C. may be accompanied with affidavit, in order to deter casual invocation of the authority of Magistrate so as to decrease the misuse of powers. The above case law does not support the argument of revisionists and in view of observations made in above judgment the prosecution case may not be thrown out at the stage of appeal after final disposal of trial. The argument so raised by learned counsel for the revisionists is only to be rejected.
Before discussions on IInd part of argument raised by revisionists regarding the trial having been vitiated due to defective statements of accused/revisionists under Section 313 Cr.P.C. and of impugned order of remand of the case for de novo or afresh trial being illegal, I find it proper to reproduce the relevant provisions of Sections 313 and 386 of the Code of Criminal Procedure, of which relevant parts Section 313(1)(b) and Section 386 (b) are being highlighted.
Section 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.
Section 386. Power of the Appellate Court.
After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-
(a) in an appeal from an order or acquittal, reverse such order and direct that further inquiry be made, or that the accused be re- tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the Same;
(c) in an appeal for enhancement of sentence-
(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse such order;
(e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement: Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal.
The learned counsel for the revisionists have repeatedly contended that by defective statements of accused under Section 313 Cr.P.C. great prejudice was caused to them and so it vitiates the trial and impugned order of remanding the case to court below for de novo trial is wrong, illegal and liable to be set aside.
It is pertinent to mention that by the impugned order, the appellate court has not remanded the case for de novo trial rather has remanded it for a limited exercise of re-examination of accused/revisionists in accordance with the provisions of Section 313 Cr.P.C. and disposal of case thereafter in accordance with law. In compliance with the impugned order, the trial court is not required to re-examine all prosecution witnesses again and undergo the extreme exercise afresh which may be required in de novo trial.
The learned counsel for the accused/revisionists has failed to show/prove as to what prejudice has been caused to the revisionists on account of alleged non-compliance of provisions of Section 313 Cr.P.C. which would have occasioned in failure of justice. The Appellate Court has also not found any prejudice having been caused to the revisionists however considering the irregularity committed by trial court, has passed the impugned order so as to remove the defect of irregularity. The above irregularity is not an illegality and does not amount to an illegality which may vitiate the proceedings of trial within the meaning of provisions Section 461 of the Code of Criminal Procedure, rather is an irregularity which does not vitiate the proceedings of trial and may be rectified.
In the case of Nar Singh Vs. State of Haryana (2015) 1 SCC 496 (supra) relied by the learned counsel for the respondent no.2, the Apex Court making observations in relevant paras 16 to 19 and 30 (which are being reproduced hereunder) has held that omission by Court to quote any material circumstance to accused u/s 313 Cr.P.C. does not ipso facto vitiates trial and burden to prove prejudice caused to accused which occasioned failure of justice on such non-compliance, lies on the accused himself.
16. Undoubtedly, the importance of a statement under Section 313 Cr.P.C., 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 Cr.P.C. 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 Cr.P.C. 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 Cr.P.C., 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 of mandatory provisions of Section 313 Cr.P.C., 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 Cr.P.C. 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. The State of Uttar Pradesh, AIR 1956 SC 400; and Bhoor Singh Anr. v. State of Punjab, AIR 1974 SC 1256 held that every error or omission in compliance of the provisions of Section 342 of the old Cr.P.C. does not necessarily vitiate trial. The accused must show that some prejudice has been caused or was likely to have been caused to him.
18. Observing that omission to put any material circumstance to the accused does not ipso facto vitiate the trial and that the accused must show prejudice and that miscarriage of justice had been sustained by him, this Court in Santosh Kumar Singh v State through CBI, (2010) 9 SCC 747 (Para 92), has held as under:
“… the facts of each case have to be examined but the broad principle is that all incriminating material circumstances must be put to an accused while recording his statement under Section 313 of the Code, but if any material circumstance has been left out that would not ipso facto result in the exclusion of that evidence from consideration unless it could further be shown by the accused that prejudice and miscarriage of justice had been sustained by him…”
19. In Paramjeet Singh alias Pamma v State of Uttarakhand (supra), this Court has held as under:-
“Thus, it is evident from the above that the provisions of Section 313 Cr.P.C. make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead, he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of any inadvertent omission on the part of the court to question the accused on an incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court.”
30. Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under:-
(i) Whenever a plea of non-compliance of Section 313 Cr.P.C. is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer;
(ii) In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits.
(iii) If the appellate court is of the opinion that non-compliance with the provisions of Section 313 Cr.P.C. has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused under Section 313 Cr.P.C. and the trial Judge may be directed to examine the accused afresh and defence witness if any and dispose of the matter afresh;
(iv) The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused.
The Apex Court in the case of Ajay Kumar Ghoshal etc. Vs. State of Bihar and Another reported in 2017 AIR Supreme Court 804 or 2017 Cr.L.J. 1428, where in an appeal against conviction of accused persons under Sections 304B, 120B and 201 I.P.C. in a case of dowry death within 4 months of marriage, the High Court had ordered re-trial on the basis of certain lapses on the part of Investigating Officer/ Trial Court, in appeal against such order, the Apex Court relying on the law laid down in Nar Singh case (supra) allowed the appeals and remitted the matter back to High Court for afresh disposal in accordance with law holding that,
“Though under the provisions of Section 386(b) Cr.P.C. in an appeal against conviction, the Appellate Court may, (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be retried by a court of competent jurisdiction but this power for “de novo” or “new trial” should be exercised only in exceptional cases, where the Appellate Court is satisfied that the omission or irregularity has occasioned in failure of justice. A “de novo” trial should be the last resort and that too when such course becomes so desperately indispensable, it should be limited to the extreme exigency to avert a failure of justice. Any omission or even the illegality in the procedure which does not affect the core of the case is not a ground for ordering a de nove trial, because the Appellate Court has plenary powers for re-evaluation and re-appraising the evidence.”
In above case, the Apex Court has also held that the High Court has not properly appreciated the ratio laid down in Nar Singh’s case wherein some of the important questions like Ballistic Report and certain other incriminating evidence were not put to the accused and considering that the prejudice would be caused to the accused, the case was remitted to the trial court for proceeding afresh from the stage of Section 313 Cr.P.C.
In the case in hand, the Appellate Court has not found that due to omission to quote any material circumstance to accused under Section 313 Cr.P.C., any serious prejudice has been caused to the appellants, but in order to safeguard the rights and interests of accused/revisionists, observing that since the proper questions were not put before the accused and they were not afforded the appropriate opportunity of giving explanation with regard to oral and documentary evidence of prosecution, has remitted the matter to trial court for proceeding afresh from the stage of Section 313 Cr.P.C. Since the de novo or new trial has not been directed by the impugned judgement and order, the case law relied by the revisionists is not applicable to the facts of the case.
It is not disputed that in this revision against the judgement and order impugned, passed in appeal against conviction, the re-appraisal of evidence by this Court is not at all warranted.
In view of discussions made above, I have come to the conclusion that the learned Additional Sessions Judge, Ghaziabad has not committed any error or illegality in passing the impugned judgment and order of remitting the case to the court below for disposal in accordance with law from the stage of Section 313 Cr.P.C., without there any ambiguity giving rise to possibility of de novo afresh trial, by the Magistrate. The apprehension of revisionists of de novo trial by Magistrate is wrong and baseless.
The learned counsel for revisionists has failed to show any illegality, irregularity, incorrectness or impropriety in the impugned judgement and order dated 30.6.2011 passed by Additional Sessions Judge, Ghaziabad in Criminal Appeal No.30 of 2009 and has failed to prove any sufficient ground for interfering with or setting aside the impugned judgment and order. The revision has no force and is liable to be dismissed.
The revision is dismissed and impugned judgment and order dated 30.06.2011 is confirmed. However it is further clarified in the interest of justice as well as to safeguard the rights of revisionists, that the case stands remitted to trial court (the court of Magistrate) in view of the observations made in the impugned judgment and order, which shall proceed with the case afresh from the stage of statement of accused under Section 313 Cr.P.C. and after putting proper questions to accused persons with reference to oral and documentary evidence of prosecution, and affording reasonable opportunity to produce further defence evidence if any, shall conclude the trial expeditiously, afresh in accordance with law, if possible within three months from the date of production of copy of order before it.
Interim order, if any, stands vacated.
Let a copy of order be sent to court below for further proceedings by the Magistrate concerned.
Order Date :- 25.08.2017