Jangir Singh vs The State

Chopra, J.—Jangir Singh, appellant, was charged u/s 302 I.P.C, and was tried by the Additional Sessions Judge, Bhatinda, at Faridkot with the aid of assessors. He was, however, convicted u/s 304 (1) I.P.C. and. as sentenced to ten years'' R.L. Both the convict and the State have presented separate appeals, against the judgment of the trial Judge, the former for getting his conviction and sentence set aside and the latter for securing conviction of the accused u/s 302, I.P.C.

S. Ujagar Singh, the learned counsel for the accused, has raised certain preliminary objections to the legality of the judgment & has stressed that the trial was vitiated for the following reasons:

(1) Two of the assessors who sat with the learned trial Judge had not been summoned as assessors for the purpose of this trial;

(2) The Judgment was not pronounced in the presence of the assessors; and

(3) The statement of the accused under section. 342. Cr. P. C. was not properly recorded.

The facts that relate to the first two objections are these. Eight assessors were summoned by the Additional Sessions Judge for the date of the trial of this case viz. 14-5-1951, but on that day- only two appeared. The learned Judge requisitioned the services of Shri Jagdish Kumar and Munshi Ram who happened to be present in the court precincts to act as assessors along with the two who had appeared in obedience to the precepts duly issued. The trial commenced that day with the aid of the requisite number of assessors and they continued to be present till the parties closed their case. Arguments were heard and opinions of the assessors were recorded on 15-6-195L The case was then adjourned to 18-5-1951 for pronouncement of judgment. Since the judgment was not ready on 18th, the case was adjourned to 21st and. then to 24th. The judgment was pronounced on the latter date. The assessors who had probably been discharged on 15th May, were not present on the subsequent dates fixed in the case, or when the judgment was pronounced.

It is contended that Shri Jagdish Kumar and Munshi Ram who had not been summoned in the first instance by the A.S.J. were incompetent to act as assessors and since the statutory number of assessors was incomplete, the trial was contrary to law. Reliance is placed on Sections 284 and 326 Cr. P.C. Section 284 provides that when the trial is to be held with the aid of assessors not less, than three and, if practicable, four shall be chosen, from the persons summoned to act as such. Section 326 gives the mode in which the assessors are to be summoned. The argument is that since two of the assessors had not been summoned to act as such in accordance with the law, the Court was not properly constituted to proceed with the trial as required by section 284. It may here be observed that no objection to the competency of these persons to act as assessors was taken by the accused: during the trial nor in the grounds of his appeal to this court. The learned counsel for the accused also has not contended during his arguments before us that these two gentlemen were not on the approved list of assessors for the court.

There is no provision in the Criminal Procedure Code requiring the Sessions Court to enquire from the accused if he had any objection to the selection of persons to act as assessors. If, however, an objection is raised, the Sessions Judge would consider the objection and, if valid, would allow it. No objection in this case having been taken before the trial Judge or even before us we can safely presume that the persons selected on 14th were eligible to act as assessors. What is objected to is that the summons had not been issued and served in accordance with section 326. This section lays down the procedure which has ordinarily, to be followed, and is not mandatory. If the exigencies of a particular case are such that a precept required by the section for summoning the assessors cannot be issued, it does not mean that the Sessions Judge is precluded from adopting any other method of summoning or calling an assessor to assist at the trial of a case, or that if he adopts any other procedure the person who is otherwise competent to act as an assessor is disqualified from acting as such. In any case, this would be only an irregularity curable u/s 537, Cr. P.C. and it has not been urged, nor there is the least indication, that the accused was in any way prejudiced by the alleged irregularity.

In Emperor Vs. Ramsidh Rai and Another, the facts were almost similar. The requisite number of assessors had not attended in response to the summonses and the Court asked another person who was present in the Court and whose name was included in the list of assessors to serve as an assessor to make up the number. The trial under the circumstances was not held to be illegal. A similar view was taken by the same High Court in Ram Babu Jadav and Others Vs. Emperor, . The cases relied upon by S. Ujagar Singh are those where persons who were not on the approved list of assessors had been called to act as assessors. In ''KHUB SINGH v. EMPEROR'' 8 Ind Cas 874 (Oudh) Nazir of the Sessions Judge, who was not an approved assessor, was called and directed by the Judge to act as an assessor. Mr. Chamier, Judicial Commissioner, who decided the case in appeal, observed that an official of the Court of the trial Judge was the most unsuitable person to act as an assessor because it was not easy for him to express an opinion contrary to that which he saw the Sessions Judge had formed.

It was, therefore, held that the irregularity in not selecting the assessors out of the persons summoned u/s 326 Cr. P.C. could not be cured by section 537 Cr. P.C. and that the trial was not conducted in a properly constituted court. In ''MAN SINGH v. EMPEROR'', 21 Ind Cas 894 (Bom) one out of the assessors who assisted the Judge at the trial, did not happen to be a person whose name was included in the list of assessors. Balak Singh Vs. Emperor, was again a case where out of the assessors summoned only one was present and a person who was not on the official list of assessors was required to act as an assessor. The first objection of the learned defence counsel that the assessors were not chosen in accordance with law must, therefore, fail.

On the second point the objection is twofold; (1) that the judgment ought to have been pronounced on 15th of May 1951 when the opinion of the assessors was recorded; and 2 that it should, in any case, have been pronounced in the presence of the assessors. Section 309, Cr. P.C, on which reliance is placed reads as follows:

(1) When, in a case tried with the aid of assessors, the case for the defence and the prosecutor''s reply (if any) are concluded, the court may sum up the evidence for the prosecution and defence, and shall then require batch of the assessors to state his opinion orally on all the charges on which the accused has been tried, and shall record such opinion, and for that purpose may ask the assessors such questions as are necessary to ascertain what their opinions are. All such questions and the answers to them shall be recorded.

(2) The Judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors.

The contention is that the word "then" in Subsection (2) signifies that the judgment should be pronounced soon after the assessors have expressed their opinions and necessarily the same day before the assessors are discharged. The contention appears to me to be frivolous. A similar argument of S. Ujagar Singh was not accepted by this Court in ''Harbalas v. State'', Criminal Appeal No. 126 of 1951 decided on 24-7-1951. The word ''then'' in the sub-section stands for what is subsequently to follow in point of sequence. It only means that the Judge shall deliver judgment after the opinions of assessors have been recorded. It can by no stretch of imagination be taken to mean that the judgment must be delivered there and then or even soon after. Section 366, Cr. P.C., which gives the mode of delivering judgments, explicitly provides that judgment can be pronounced either immediately after the termination of a trial or at some subsequent time, notice of which shall be given to the parties or their pleaders.

As regards the other objection the argument is that section 268 Cr. P.C. enjoins that all trials before a court of Sessions shall be either by jury or with the aid of assessors and since pronouncement of judgment is also a part of the trial and since the trial does not conclude till judgment is delivered, the judgment must also be pronounced in the presence of assessors. It is further contended that since the court in such cases means the Judge plus the requisite number of assessors the Court without the assessors remains incomplete. It is, therefore, maintained that a judgment is vitiated if it is pronounced when the court is not properly constituted. Reliance is placed on certain authorities where it was held, though on different set of facts, that trial in a criminal case continues till the Judgment is delivered and that it does not finally conclude once the arguments in the case are heard.

In '' Channu Lal and Another Vs. Rex, the phrase "at any stage of - trial" occurring in section 540 Cr. P.C. was under consideration and the contention was that since the trial had finished as soon as the defence evidence was closed and arguments had been heard and since the judgment which only remained to be pronounced was no part of the trial, the court could not examine any witness under the section at that stage of the case. The contention, however, was repelled by Aggarwal J., and it was observed that the mere fact that judgment was not included in the word trial'' did not mean that the trial finally concluded when the arguments were heard. The question before their Lordships of the Privy Council in ''Basil Ranger Lawrence v. Emperor'',

AIR 1933 218 (Privy Council) was whether an alteration and recording of sentence in the absence of the accused was legal. Answering the Question in the negative, their Lordships made the following observations:

It is an essential principle of criminal law that the trial of an indictable offence has to be conducted in the presence of the accused; and for this purpose trial means the whole of the proceedings including sentence. An alteration and recording of the sentence in the absence of the accused is not legal.

S. Ujagar Singh while admitting that the facts in these cases were somewhat different urges that the decision arrived at was that the trial in a criminal case meant the whole proceedings inclusive of judgment. The learned Advocate General on the other hand contends that a trial in the Court of Sessions comes to an end when arguments are finished and opinions of the assessors have been recorded and that the writing or the delivery of judgment is no part of the trial. Reference in support of the argument has been made to another decision of the Allahabad High Court in Bakshi Ram and Others Vs. Emperor . The facts of that case again were different from those of the one before us. There the question was whether an appeal in a case where the trial was held and the arguments heard by an Assistant Sessions Judge and the judgment was pronounced when he was made an Additional Sessions Judge, lay to the Sessions Judge or in the High Court. The decision rested on the interpretation of the word "''trial" in section 408 Cr. P.C. Iqbal Ahmad J. (as he then was) after a detailed discussion of the different provisions of the Code wherever the word "trial" occurred arrived at the following conclusion:

The word "trial" in the Code of Criminal Procedure as amended by Act 18 of 1923 has been used in a restricted sense and does not include judgment in a case. Conclusion of the trial of a case takes place before the judgment is delivered and the judgment therefore is no part of the trial and is outside the scope of a trial as contemplated by the Code of 1898.

Now the word trial is nowhere defined by the present Code of Criminal Procedure and it has to be interpreted with reference to the context in which it is used in the different provisions of the Code. It may not be possible to lay down a general definition of the word, which may apply with equal force to all those provisions. It may, with much force, be said that so far as the accused is concerned his trial does not conclude till judgment is pronounced and verdict of guilty or not guilty is given. But in the ease before us we have only to see when the trial terminated so far as the assessors were concerned. The assessors, as provided by Section 268, are only to aid a trial before a Court of Sessions. They do not form the Court itself, they try nothing and decide nothing and are there simply to assist the Judge in arriving at a conclusion. At the close of evidence of the parties and after arguments are concluded, the Judge records opinions of the assessors. It is then for the Judge to give judgment and that also need not conform to the opinions of the assessors. The pronouncement of judgment is an individual act of the Judge himself and the assessors have nothing to do with it.

Their assistance is no longer required after they have expressed their opinions and they have been recorded and when it is only the judgment that remains to be pronounced. I do not see any reason why they should continue to be present after that point of time, keeping in view the fact that they play no part in, nor have any control over, the final decision of the case. The trial so far as they are concerned concludes when they have expressed their opinions. Section 309 lays down that it is then for ''the judge'' and not the Court to pronounce judgment. There is no specific provision in the Code, which requires the assessors to be present when the judgment is delivered, nor do I think their presence would serve any useful purpose. I am, therefore, of opinion that the judgment in the present case is not vitiated because it was pronounced in the absence of the assessors and after they had been discharged.

Lastly, it is urged that the trial was vitiated on account of the failure of the learned trial Judge to examine the accused in conformity with the provisions of Section 342 Cr. P.C. The statement of the accused recorded at the commitment stage was read out and explained to him and he was asked if it was correct. The question was answered in the affirmative. Another question that was put to him was if he had anything to add to his previous statement. The reply given was in the negative. A supplementary statement of the accused asking him whether he wanted to lead evidence in defence was then recorded and this also was answered in the negative. This statement no doubt is incomplete and defective.

The accused was not required to explain the circumstances appearing against him in the evidence recorded at the trial. He was only asked about his previous statement which had also been tendered in evidence by the prosecution. Giving him an opportunity to add to what he had stated before the Committing Magistrate was not a sufficient compliance of the mandatory provisions of section 342 Cr. P. C. The matter is fully covered by a recent pronouncement of their Lordships of the Supreme Court in Tara Singh Vs. The State, . The questions put to the accused in that case were the same as those in the present case. Their Lordships found these questions to be insufficient and observed that the omission to examine the accused on points brought out in evidence given before the Sessions Judge amounted to non-compliance with the requirements of section 342.

It is not the first case in which this sort of defective and incomplete statement of the accused recorded by Shri Kulbhushan, the learned trial Judge, has come to the notice of this court. In a number of them lie has been seen to have put such like two three steriotyped questions to the accused at the close of the trial. Recently, this very Bench in ''SARWAN SINGH v. STATE'', Cri. A. No. 132 of 1951 D/-26-11-51 had to point out that the statement recorded by the Judge was defective and did not rigidly comply with the provisions of Section 342, Cr. P.C. But, in that case, the accused was not considered to have been prejudiced by the omission because the answers he gave to the questions put to him indicated that he was fully conscious of the substance of the evidence against him, and the trial, therefore, was not held to have been vitiated. Only a few days ago, an identical statement recorded by the same Judge was before a Bench of this Court in ''Munshi Singh v. State'', Cri. A. No. 192 of 1951 decided on 23-1-52. There the conviction was set aside on this ground alone because the defect was held to have prejudiced the accused.

Tile learned Advocate General has frankly conceded that the mandatory provisions of section 342 had no doubt been ignored in this case and that the statement was defective, but he contends that the defect was curable u/s 537, Cr. P.C. unless it was shown to have prejudiced the accused. He has pointed out that all the circumstances brought out in the prosecution evidence against the accused had been put to him by the Committing Magistrate and the accused had been asked to explain them, if he could. At the trial the accused admitted that previous statement had been correctly recorded and stated that he had nothing to add. It is, therefore, stressed that no prejudice had in fact been caused to the accused. In support of his contention the learned Advocate General has drawn our attention to the judgment of a Division Bench of this court, to which I also was a member, in ''Kundan Singh v. State'', Criminal Appeal No. 38 of 2004, D/- 30-8-2005. In that case almost similar questions which had been put to the accused, were held to be defective, but it was observed that the defect had not occasioned failure of justice or caused prejudice to the accused.

I have no hesitation to agree with the learned Advocate General that every failure to strictly comply with the provisions of section 342 Cr. P.C. would not vitiate the trial. For that purpose,, it has further to be shown that the defect had resulted in prejudice to the accused. The prejudice may be in the way of offering explanation to the prosecution evidence or in leading evidence in defence. The following observations were made by Bose J. in the Supreme Court case referred to above:

I do not suggest that every error or omission in this behalf would necessarily vitiate a trial, because I am of opinion that errors of this type fall within the category of curable irregularities. Therefore, the question in each case depends upon the degree of the error and upon whether prejudice has been occasioned or is likely to have been occasioned. In my opinion, the disregard of the provisions of S. 342, Cr. P.C. is so gross in this case that I feel there is grave likelihood of prejudice.

It has therefore, to be seen whether any such prejudice had in fact resulted or was likely to result in this case. It may here be observed that the prosecution examined only one out of the two alleged eye-witnesses of the occurrence and relied upon the verbal statement of the deceased himself. S. Ujagar Singh has stressed that if these facts had been brought to the notice of the accused and if proper and necessary questions had been put to him he would certainly have offered explanation or examined evidence in defence to prove that he was innocent. We think there is much substance in the contention. The facts do indicate that there was likelihood of prejudice having caused to the accused and the result, therefore, is that the trial is vitiated. In the ''criminal appeal No. 38 of 2004,'' reference to which has already been made, there was not the slightest suggestion that the accused had been prejudiced. The defect in the accused''s statement was not even pointed out by the defence and it was taken notice of by the court itself.

The next question is whether we should direct a de novo trial or the trial should start from the point where the irregularity occurred. The case relates to Bhatinda District and was tried at Faridkot by the learned Additional Sessions Judge who has now been posted as Sessions Judge and transferred to Sangrur. If the case is sent back to him, he shall have to call the same set of assessors with whose aid the trial was held, and certain other complications also may possibly arise. The parties also belong to Bhatinda District. In view of these facts we allow the appeal, set aside the conviction and sentence of the accused and send back the case to the Sessions Judge, Bhatinda, for fresh trial in accordance with law. The State appeal automatically fails.

Passey, J.

I agree.