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Mohit Gupta And Ors. vs State Of J&K; on 7 September, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

Cr. Rev No. 20/2013 IA No. 08/2013
Date of Order:07.09.2018

Mohit Gupta and ors. Vs. State of JK

Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:

For Petitioner(s) : Mrs. Veenu Gupta, Advocate.
For respondent (s) : Mr. Sunil Malhotra, GA.

i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.

1. This criminal revision has been filed against the order dated 20.03.2013 of
learned Additional Sessions Judge, Jammu, arising out of FIR No.165 of
2000 registered with Police Station Pacca Danga, Jammu, for commission
of offences punishable under Sections 363, 342, 354, 376 511 RPC.

2. Petitioners in the memo of criminal revision have stated that the trial Court
by virtue of order dated 20.03.2013 has again directed recording of the
additional statements of the petitioners/accused under Section 342 Cr. P. C.
It is stated that the said order is against the law and facts, so the same is not
sustainable. It is stated that the power exercised by the trial Court while
passing the impugned order is contrary to the provisions of Section 342 Cr.
P. C., as the statement can be recorded only once. It is further stated that
the trial Court has no power to fill the lacunas left by the prosecution and
the trial Court has misconstrued the aforesaid provisions while passing the
order impugned.

Cr. Rev. No. 20/2013 Page 1 of 6

3. On the other hand, learned counsel for the respondent-State submits that
the purpose of recording again the statements under Section 342 Cr.P.C. is
to put incriminating circumstances to the accused, so that he may not be
prejudice in his defence.

4. I have considered the rival contentions and the arguments of learned
counsel for the parties.

5. From the perusal of the impugned order, it reveals that during the course of
final arguments, the trial Court has come to the conclusion that certain
incriminating circumstances, which has come in the evidence of
prosecutrix and PW Balwant Singh, Tehsildar, pertaining to the
identification of the accused have not been put to them: so in order to seek
their explanation the trial Court again directed recording of the additional
statements of the petitioners/accused under Section 342 Cr.P.C.

6. The operative part of the impugned order dated 20.03.2013, reads as
under:-

“From the close scrutiny of the statement of prosecutrix,
it is apparent that prosecutrix in her cross examination
deposed that she has identified the accused in an
identification parade conducted by a Magistrate at Police
Station and she had also admitted her signatures over the
„Identification Parade Memo‟ in the file. Similarly PW
Balwant Singh, the then Naib Tehsildar, Executive
Magistrate, Jammu has proved his handwriting and
signatures over the said memo exhibited as EXPW-
BS/1,2,3 in the file conducted by him at police Station,
Pacca Danga on 24.07.2000 with regard to the
identification of accused by the person who put
signatures over the said memo in his presence.

Undisputedly, the aforesaid circumstances in the
evidence of two prosecutrix witnesses mentioned above
were required to be put to the accused at the time of
recording their statements under Section 342 Cr.P.C in
order to seek their explanation but having not done so, I
thing, keeping in view the mandate of aforesaid section
this Court is not powerless at this stage to put relevant
questions to the accused relating to their identification in
the course of their further examination and certainly it

Cr. Rev. No. 20/2013 Page 2 of 6
will not cause any prejudice to them because apart from
having a right to tender explanation to the incriminating
circumstances against them in the evidence of above
mentioned two prosecution witnesses, they can also have
an option to lead defence evidence in rebuttal if they
chose to do so.

Viewed thus, the objection raised by the learned
senior counsel for the accused is rejected and file to
come up for recording further statement of accused
under Section 342 Cr.P.C on 5.4.2013.”

7. Section 342 of Cr.P.C. reads as under:-

“Power to examine the accused (l) 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 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)].

8. There is no dispute between the parties that any material evidence, if not
put to an accused while being examined under Section 342 Cr.P.C. would
cause him prejudice and vitiate trial. This position is otherwise fairly
settled. It has time and again been emphasized that examination of an
accused under Section 342 Cr.P.C. is very important aspect of trial and any
material which is to be used against the accused for recording a finding
against him is required to be put to him so that he is given an opportunity to
explain the same. There is also no scope of much debate that any

Cr. Rev. No. 20/2013 Page 3 of 6
circumstance or material when not put to the accused at the trial would
prejudice the accused as well prosecution, because such a material or
circumstance cannot be taken into consideration for recording any finding
against accused or in favour of prosecution. Such evidence is required to
be excluded from consideration to avoid any prejudice to an accused
person. Section 342 Cr.P.C. is mandatory in nature and mandates that any
circumstances appearing in the evidence against an accused is required to
be put to him, enabling him to explain such circumstances . The scope and
object of examination of the accused under section 342 Cr.P.C. is to
establish a direct dialogue between the Court and the accused, and to put
every important incriminating piece of evidence to the accused and grant
him an opportunity to answer and explain them.

9. Section 342 Cr.P.C. consists of two parts. The first confers discretion
(“may”) to the Court to question the accused at “any stage” of an inquiry or
trial without previously warning him. Under this section the Court is
required to question him generally on the case after the witnesses for the
prosecution have been examined and before he is called for his defense.
The second part is mandatory and imposes upon the Court a duty to
examine the accused at the close of the prosecution case, to give him an
opportunity to explain any incriminating circumstances appearing against
him in the evidence and to state, whatever he wishes to, in his defense. He
is not bound to answer the questions. Under Sub-section (3) the answers
given by the accused may be taken into consideration in the inquiry or trial.
His statement is material upon which the Court may act, and which may
prove his innocence. Under Sub-section (4) no oath is administered to him.
The reason is that when he is examined under the provision, he is not a
witness.

10. Section 540 empowers the Court to summon any person as a witness, or
examine any person in attendance, though not summoned as a witness, or

Cr. Rev. No. 20/2013 Page 4 of 6
recall and re-examine any person already examined, for “the just decision”
in a case. The same could be after the examination of the accused under
Section 342. In the course of evidence so recorded, adverse materials or
circumstances may be shown which would have to be put to the accused. It
is possible that the materials adduced before the Court, pursuant to orders
under Section 540, may contain some adverse circumstances which may
have not been put against the accused when he was examined, after
conclusion of the prosecution evidence. Therefore, it would be idle to
contend that Section 342 Cr.P.C. deals only with one point in time at
the trial stage and the Court cannot call the accused to answer the
incriminating circumstances again. There is no implied prohibition in
calling upon the accused to again answer questions, which have been left
by way inadvertently or oversight.

11. In this case, once the statements of accused have been recorded on
26.11.2005 under section 342 Cr.P.C, thereafter even defense witnesses
were produced; but at the time of argument trial Court found that some
incriminating circumstances stated by PWS Prosecutrix and PW Balwant
Singh Tehsildar with regard to identification of accused were not put to
accused while recording their statements u/s 342 Cr.P.C. on 26.11.2005, to
which counsel for accused raised objections. Court by way of detailed
order impugned overruled the objections and posted the file for further
recording of the statements of accused under section 342 Cr.P.C. in this
regard. I have accordingly gone through the statements of prosecutrix, PW
Balwant Singh and statements of petitioners/accused which were already
recorded under Section 342 Cr.P.C. Apparently, incriminating material
which had come in the evidence of prosecutrix and PW Balwant Singh,
Tehsildar pertaining to identification were not put to the
petitioners/accused.

Cr. Rev. No. 20/2013 Page 5 of 6

12. There is no bar in the Code of Criminal Procedure that, Court if comes to
the conclusion that some incriminating material were not put to the accused
person while recording the statement under Section 342 Cr.P.C., it cannot
call the accused again for putting the left over incriminating material to
accused for getting their explanation.

13. In view of the above, I find no ground to interfere with the order of learned
Additional Sessions Judge, Jammu. Therefore, the instant criminal revision
is, accordingly, dismissed. Record of Court below be sent back with
direction to decide the case expeditiously.

(Sanjay Kumar Gupta)
Judge
Jammu
07.09.2018
Bir

Cr. Rev. No. 20/2013 Page 6 of 6

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