Mahabir Singh vs State of Haryana

Ujagar Singh, J.

The petitioner was secured in the area of village Bhogipur at about 5.30 p. m. on 18th June, 1984 by the police party. The police party headed by A.S.I. Puran Mal, H. C. Sis Ram and other constable, while on excise checking duty received a secret information about the petitioner coming with illicit liquor loaded on a camel by the side of nandi from Mundairka side and if nakabandi was held near the bridge, the petitioner could be apprehended. On the basis of this information, A. S. I. Puran Mal along with other police officials held nakabandi on that bridge at that time and saw the petitioner coming from the side of village Mundarka riding on a camel along the nadi and he was apprehended by the A. S. I. with the help of police officials and on enquiry by the A. S. I. the petitioner gave his name as Mahabir. On search of the camel, two gunny bags were found tied on the back of the camel and when the gunny bags were opened the same were found to contain one tube each. On the opening of the tubes it was found that both the tubes contained illicit liquor. One quarter each was drawn as sample from the two tubes and the remaining bulk in the tubes was measured and it was found that each of the tubes contained 1011/2 bottles of illicit liquor. This illicit liquor was duly sealed in the said tubes and the quarter samples were also duly sealed with the seal of `TR'' and the seal, after use, was handed over to the H. C. Sis Ram. Both the tubes, the quarter samples, two gunny bags, rope and the camel etc. were secured by the police and the petitioner was arrested under Section 61(i)(a) of the Punjab Excise Act. Ruqa Exhibit P. D. was sent by A.S. 1. Puran Mal to Police Station Taoru for recording formal A.I.R. which was recorded in the police station as Exhibit P. D./1 at 6 10 P.M. on that date. Exhibit P. X. is the rough site plan prepared by A. S. 1. Puran Mal. The samples were sent to Chemical Examiner vide whose report Exhibit P. B samples were found to be country liquor unlawfully manufactured.

Report under Section 173 of the Code of Criminal Procedure was presented and after framing a charge under the said section vide order dated 31st October, 1984, the prosecution evidence was recorded because the petitioner pleaded not guilty and claimed to be tried. The prosecution examined H. C. Sis Ram P.W. 1 and A. S. I. Puran Mal P.W.2 and after giving up Sher Singh P.W.as unnecessary, affidavits of H. C. Ishwar Singh and Constable Balraj as also report Exhibit P. B. sent by the Chemical Examiner were tendered in evidence.

The trial Court found the petitioner guilty under the said offence and sentenced the petitioner to undergo imprisonment for 21/2 years and to pay a fine of Rs. 1500/ and in default of payment of fine to further undergo simple imprisonment for 5 months. The petitioner filed an appeal which was heard by the Additional Sessions Judge (I). Vide its order, the appellate Court accepted the appeal only on the ground that contents of the report, Exhibit P. B. with regard to sample were not put to the petitioner in his statement under Section 313, Criminal Procedure Code, following the decisions in Ajit Singh and others v. State of Punjab, 1983 (1) Chandigarh Law Reporter 535 : 1983 (1) Recent CR 581 and Balkar Singh v. State of Punjab, 1985(1) Chandigarh Law Reporter 98 : 1984(2) Recent CR 480 as also Ram Chander v. State of Haryana, 1983 Cr.L.T. 58 and ultimately set aside the conviction and the sentence and remanded the case to the trial Court for recording the statement of the aroused under Section 313, Criminal Procedure Code, in accordance with law and to proceed further in the matter.

The petitioner has come up in this revision challenging the order of remand and seeking acquittal on the same ground on which the appeal had been remanded by the appellate Court.

Learned counsel for the petitioner has vehemently argued that the petitioner had undergone the ordeal of criminal trial since, 18th June, 1984. Section 313 of the new Code is reproduced as under :

"S. 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 this examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under subsection (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. "

The relevant portion of this Section is clause (b) of subsection (1) which requires question the accused generally on the case. These words have been differently interpreted in various judgment and it has become necessary to discuss the precedents. In Hate Singh Bhagat Singh v. State of Madhya Bharat, AIR 1953 S.C. 468, it was laid down by the Supreme Court that the fact that the accused had absconded was considered to be an important fact and at no stage of the case, the accused had been asked to explain this fact. The fact of absconding being very material and, therefore, before using it against the accused he was held entitled to a chance to explain it. In Machander v. The State of Hyderabad, AIR 1955 S.C. 792, it was a case wherein accused was charged with murder and was ready to disclose everything on the day of his arrest but the police waited for six days before getting a confession recorded. No question was put by the Sessions Judge under Section 342 of the old Criminal Procedure Code about this confession and the accused was convicted for murder and his conviction was confirmed by the High Court. The error of asking no question about that confession was held to be not a mere technicality. In view of the accused having been on trial one way or the other ever since his arrest for over 41/2 years when he applied for special leave to appeal to the Supreme Court, the accused was acquitted. In this case the confession was most important material to be used against the accused.

In another case Municipal Committee Amritsar v. Om Parkash, (1969) 71 P.L.R. 793, a Division Bench of this Court held :

that doubtlessly the trial Court is given a discretion to examine the accused at any stage other than rising immediately after the close of the prosecution evidence, but then such discretion has to be used judicially and, therefore, in conformity with established principles of criminal jurisprudence. It is wellsettled by now that if a material circumstance emerging from the evidence in the case is intended to be used against the accused, he must be afforded an opportunity of explaining such circumstance and that if such opportunity is not afforded the trial would be vitiated if a prejudice is thereby caused to him.

Held further that, the word `prosecution'' however, cannot be read into the first part of sub section (1) of Section 342 of the Code of Criminal Procedure where the language used is any circumstance appearing in the evidence against him. It is thus clear that the principle enunciated above would apply to all circumstances which go against the accused and which are intended by the Court to be used in convicting him.

Held, therefore, that the principle which enjoins on the trial court to offer to the accused an opportunity of explaining the circumstances appearing in the evidence against him has to be followed irrespective of the source which supplies such evidence."

In that case, the sample of ghee was sent to Public Analyst and it was stated in his opinion that the sample was adulterated as it did not conform to the specifications in respect of Baudouin test and it was in view of this opinion that the accused was prosecuted. The prosecution evidence was as closed and accused was examined under Section 342 of the old Code. Thereafter the accused examined Virsa Singh and Santokh Singh and both of them deposed that a peon had brought the bati in question from nearby dhaba belonging to the former, and thereafter closed his defence on 19th February, 1965. Arguments were heard by the trial Court and 30th March, 1965 was fixed for others. On that date, the accused presented an application for sending the bottle containing a part of the sample of ghee to the Director, Central Food Laboratory, Calcutta for analysis. This application was allowed but the bottle sent developed a leak during transit and a third bottle which was in the custody of the Food Inspector was sent. The Director of the Laboratory stated the result of the analysis in his certificate as under

Moisture 1.8%

Butyro refractometer reading at 40oC. 43.0

Reichert value 32.1

Free fatty acids as oleic acid 1.9%

Boudouin test for sesame oil Negative

Halphen test for cottonseed oil Negative

In the opinion of the Director, the sample of ghee was adulterated.

The accused thereafter filed two applications and one of them was to examine the Director on commission. Both these applications were disallowed under Section 342 of the old Code, no question was put to the accused in respect of the certificate issued by the Director Central Food laboratory, Calcutta and in spite of this the accused was convicted on the said certificate. The Division Bench was of the view that this was a material circumstances which was to be put and, therefore, the acquittal on this ground by the Session Judge was maintained.

In Ram Chander v. The State of Haryana, (1982)2 Food Adulteration Cases 331, the existence of the report Exhibit P.D. on the record was admitted by the petitioner as also he had received a copy thereof in compliance. with the law and it was held that this aspect stops at that and cannot be taken further that the petitioner should be assumed to have known the contents of Exhibit P.D. and the extent of adulteration. It was further held that as the report of the Public Analyst was not put to the petitioner specifically and the contents thereof with regard to the extent of adulteration it was on this basis that the conviction of the petitioner was held to be not maintainable. It is not clear from the report as to in what form the question was put. In that case, reliance was placed on Mohan Singh v. The State of Punjab, 1973 F.A.C. 242 and Nikka Ram v. The State of Punjab, 1980 (II) P.A.C. 33, but in these cases report itself was not put to the accused.

In Jang Bahadur v. The State U.T. Chandigarh, 1983 (11) F.A.C. 313 : 1983 (2) Recent 577 the following question was put to the accused :

"It is in evidence against you that the Government Food Inspector received the report of the Public Analyst Exhibit P.G. through Local Health Authority, according to which your sample was found to be adulterated and thereafter documents mere prepared and given to L.N. Sharma, who filed the complaint Exhibit P.E. in the Court. What have you to say ?

Although in this case, conviction and sentence were set aside on the ground as to what the adulteration for which he was being charged, the question put to the accused was a complex question containing a bundle of facts which would otherwise violate the provisions of Section 313 of the Code. Brother Dewan J., who decided this case has taken a different view in case of Durlab Singh v. State of Punjab. (1984) 2 Cr L.J. 1419 : (1984) (2) Recent CR 101 wherein it was specifically stated as under, after referring to various authorities.

"x x Where in his examination under Section 313 3 it was brought to the notice of the accused that the sample purchased from him was on his request sent to the Director Central Food Laboratory and the sample according to his report was found adulterated and was asked as to what he had to say about it and the accused replied that it was correct that the sample was sent to the Director, it cannot be said that the report of the Director and its contents were not properly put to him, during his examination and therefore there can be no occasion for him to complain that he has been in any way prejudiced."

In Chaturbhuj v. State of Haryana, 1985 (II) F.A.C. 205 : 1985 (1) Recent CR 330 it was held that where the report of the Public Analyst was not put to the accused under Section 313 of the Code, the trial was vitiated. In that case also it is not clear as to what was the question put. The conclusion of the learned Judge as contained in para 6 of the judgment is that by reason of the report of the Public Analyst not having been put to the accused under Section 313 of the Code, the trial of the accused was vitiated. In Balkar Singh v. The State of Punjab, 1985(1)C.L R. 98, it was held that where the report of the Excise Inspector had not been put to the accused in his statement, his conviction was unsustainable and was liable to be set aside. This case also deals with a situation where the report itself is not put although the contention was that the contents of the report were not put to the accused.

In Baldev Raj v. State of Haryana, 1984(1) F.A.C. 320 : 1984 (2) Recent CR 132 report of the Director was not put to the petitioner when be was examined under Section 313, Criminal Procedure Code and only the report of the Public Analyst was put to him. Various precedents were referred and discussed ultimately B.S. Yadav, J. came to the conclusion basing on the obervations in Harnam Singh v. State (Delhi Administration AIR 1976 S.C. 2140 that irregularity committed in the examination of the accused is curable unless prejudice has been caused to him and it was for the accused to show that prejudice has been caused to him by the defective examination and if a certain question had been put to him, he could have given some answer. In Roop Lal v. The State of Punjab, 1984(1) F.A.C. 329 it was after discussion various precedents, Yadav, J. held that each case has to be discussed in the light of its own facts and even if for argument''s sake, it is held that the examination of the petitioner was defective, the question arises whether such a defect is fatal to the prosecutor case and every defective examination considering the circumstances of each case is not fatal to the prosecution case unless prejudice has been caused to the accused. In that case State of Punjab v. Devinder Kumar and others, 1983(1) FAC 99 was referred and relied upon and therein it was held by the Supreme Court that

"Adulteration and misbranding of foodstuffs are rampant evils in our country. The Act is brought into force to check these social evils in the larger public interest for ensuring public welfare. In certain cases the act provides for imposition of penalty without proof of a guilty mind. This shows the degree of concern exhibited by Parliament in so far as public health is concerned. While construing such food laws. Courts should keep in view that the need for prevention of future injury is as important as punishing a wrong doer after the injury is actually inflicted. Merely because a person who has actually suffered in his health after consuming adulterated food would not be before court in such cases, courts should not be too eager to quash on slender grounds the prosecutions for offences, alleged to have been committed under the Act,"

It may be reiterated that under Section 313 of the Code the Court has to question the accused generally" on the case after the witnesses for the prosecution have been examined and before be is called upon for his defence and under Section 465 of the Code no finding, sentence or order passed by a Court of competent jurisdiction can he reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrants, proclamation, order, judgment or other proceedings before or during trial or in any enquiry or other proceedings or any error or irregularity in any sanction for the prosecution, unless in the opinion of that Court a failure of justice to that. effect has been occasioned thereby, In the case in hand, no prejudice has been shown to have been caused to the petitioner, even if it is considered that the examination was defective. In my view, considering the various authorities the word `generally'' does not require each and every item of evidence to be put to the accused specifically. For instance, in this case the question asked from the petitioner was as under :

According to report, Exhibit P.B. about the liquor recovered, the liquor was found to be illicit ?

A. I do not know.

Considering the answer and question put to the petitioner, it cannot be said that the contents of the report were not put and that there was any prejudice caused to the accused in Makan Jivan and others v. The State of Gujarat, AIR 1971 SC 1797. their lordships of the Supreme Court reiterated the dictum laid down in Ajmer Singh v. State of Punjab, 1952 Cr.L.R. 836, wherein it was held :

"x x The duty of the Sessions Judge under Section 342 Cr.P.C. to examine the accused is not discharged by merely reading over the questions put to the accused in the Magistrate''s Court and his answers, and by asking him whether he has to say anything about them. It is also not a sufficient compliance with the section to generally ask the accused that having heard the prosecution evidence what he has to say about it. He must be questioned separately about each material circumstance which is intended to be used against him, The whole object of the section is to afford the accused a fair and proper opportunity of explaining the circumstances which appear against him and the questions must be fair and must be couched in a form which an ignorant or illiterate person may be able to appreciate and understand. It is, however, well settled that every error or omission in complying with Section 342 does not necessarily vitiate the trial. Errors of that type fall within the category of curable irregularities and the question whether the trial has been vitiated depends in each case upon the degree of error and upon whether prejudice has been or is likely to have been caused to the accused." Despite the defective questioning of the accused in that case, the Court came to the conclusion that on the facts of that case, the accused were not prejudiced as the material evidence in that case was direct evidence and that evidence was taken in the presence of the accused who was represented by a counsel.

The only difference between Section 342 of the old Code and Section 3 13 of the new Code is that in the latter section the word personally has been added to avoid any difference of opinion arising out of different cases earlier to the amendment. So far as the question of putting questions `generally on the case there has been no change. Reference may to made to the Forty First Report of the Law Commission which reads :

"24.46. The examination of the accused under Section 342 is of two kinds :

(a) the power of the court to put a particular question to him at any stage for the purpose of enabling who explain any circumstance appearing in the evidence against him, and

(b) the duty of the Court to generally examine him the (after the close of the evidence) for the above purpose.

"The object of the examination in each case is the same. But the first is optional, while the second is mandatary. The first can be at any stage of the inquiry or trial, while the second is after the witnesses for the prosecution have been examined and before the accused is called upon to enter upon his defence. The first is particular; while the second is general. These points of difference between the two would be brought out more clearly if each is dealt with in a separate clause, and we recommend that subsection (1) may be split up into two clauses, each clause dealing with one kind of examination.

47. There is a conflict of decisions on the question whether section 342 applies to summons cases. Most High Courts have taken the view that it does so apply, but a contrary view has been taken by some High Courts.

48 Where the Court has dispensed with the personal attendance of the accused, is it necessary that his pleader should be examined under section 342, or should such examination be of the accused himself ? There is also a controversy on this point, and different views have been expressed both as to what the law is and as to what it should be. One view is that the accused himself should be examined in all cases, and even where his personal attendance has been dispensed with at other hearings the court must require him to be present for examination under Section 342. Another view is that where it is not a serious case and personal attendance has been dispensed with, the court may also disperse with the examination of the accused or of his pleader. It is against the intendment of section 342 to examine the pleader instead of the accused and such examination serves no useful purpose.

The question came up before the Supreme Court in a case decided recently. After noting the sharp conflict of judicial opinion, the Supreme Court referred to the decision of the Calcutta High Court in Prova Debi v. Mrs. Fernandes, A.I.R. 1962 Cal 203 and said.

In that case a Full Bench of the Calcutta High Court by a majority decision held that the Magistrate may in his discretion examine the pleader on behalf of the accused under section 342. This view is supported by numerous decisions of other High Courts, but from time to time many judges expressed vigorous dissents and came to the opposite conclusion. The two sides of the question are ably discussed in the majority and minority judgments of the Calcutta case. After a full examination of all the decided cases on the subject, we are inclined to agree with the minority opinion.

A third view is that the pleader should be examined in such cases, but the law should also provide that the answers given by the pleader shall not be put in evidence against the accused in any other inquiry or trial for any other offence which the answers of the pleader may tend to show that the accused has committed. It would not, according to this view, be proper to totally dispense with the examination of both the accused and his pleader. There should be something on the record to show the explanation either of the accused or of his pleader.

A suggestion intended to simplify the matter was also considered by us, namely, in summons cases no examination of the accused under section 342 should be necessary, and neither the accused nor the pleader need be examined; but in all other cases the accused person should be examined personally. A more limited form of this suggestion was also considered by us, namely, that in summons cases in which the personal attendance of the accused is dispensed with, section 342 should not apply and neither the accused nor the pleader need be examined.

49 We have, on a consideration of the various views expressed in the matter come to the conclusion that :

a) the section does, and should, apply to all inquiries and trials, including commitment inquiries and trials of summons cases, and to make this position clear the words in every inquiry or trial'' should be inserted at the beginning of subsection (1);

b) 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

c) in other cases, even where his personal attendance has been dispensed with, the accused should be examined personally.

24.50. We accordingly recommend that section 342(1) be revised as follows :

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, and

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 this examination under clause (b)."

The appellate Court has relied upon Ajit Singh''s case (supra) and Balkar Singh''s case (supra). The case of Ajit Singh above has been impliedly overruled in Durlabh Singh''s case (supra). Balkar Singh''s case (supra) has already been discussed above.

Considering the cases mentioned in the light of the above observations of the law Commission, I am of the view that the petitioner cannot be given any benefit of such a technical defect which actually is no defect at all, specially when no prejudice is shown to have been caused to the petitioner.

This revision is dismissed and the order of the appellate Court remending the case for further trial, according to law, is set aside. The appeal before the appellate Court is directed to be heard on merits. Parties to appear before the learned Sessions Judge on 8th June, 1987.