Pintu and Another vs State of U.P.

B.K. Rathi, J.—The applicants are accused in S.T.No. 1302 of 1999 State v. Pintu and another, u/s 376 I.P.C. pending in the Court of XI Addl. Sessions Judge, Bulandshahr. In the case, the statements of the applicants were recorded u/s 313 Cr.P.C. on 25-7-2001. One of the questions, which was question No. 10, put to the applicants was whether they want to adduce evidence in defence. The reply given to this question by the applicants was in negative.

Thereafter, the applicants moved an application that the statements u/s 313 Cr.P.C. were recorded in the absence of the their counsel; that the reply to question No. 10 in negative has been recorded by mistake; that they want to adduce oral as well as documentary evidence in defence. The request has been rejected by the impugned order, dated 8-01-2002 by the trial Court. Aggrieved by it, this petition has been preferred.

I have heard Sri R.P.S. Yadav, learned counsel for the petitioners and the learned A.G.A.

The argument that wrong reply to the question No. 10 was recorded by the learned Addl. Sessions Judge cannot be accepted. However, for this reason the applicants cannot be debarred from producing oral or documentary evidence in defence.

The procedure for trial before a Court of Session has been provided in Chapter XVIII of the Code of Criminal Procedure 1973 consisting of Sections 225to237 Cr. P.C. Sections 231 and 233 of the Code provide that Sessions Judge after recording the entire evidence of the prosecution and examining the accused and hearing the prosecution and the defence may record the order of acquittal if he considers that there is no evidence that the accused has committed the offence. Section 233 further provides that if no order of acquittal is recorded u/s 232 Cr.P.C, the accused shall he called upon to enter on his defence and to adduce any evidence he may have in support thereof. For the purpose of clarity Sections 232 and 233(1) Cr.P.C. are reproduced below:

Section 232: Acquittal - If, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.

Section 233(1) : Entering upon defence :- Where the accused is not acquitted u/s 232, he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof,

From the perusal of the provisions of Chapter XVIII the Code of Criminal Procedure 1973, especially Section 232 & 233 Cr.P.C., it is apparent that the question whether the accused want to produce evidence in defence should not be put to the accused while recording statement u/s 313 Cr.P.C, Therefore, question No. 10 Was Wrongly put to the petitioners while examining them u/s 313 Cr.P.C.

In View of the above provisions, the question- Whether the accused want to adduce evidence in defence should not have been put to the accused while recording statement u/s 313 Cr.P.C. in Sessions trial. After the prosecution evidence is recorded and the statement of the accused is also recorded, an order should be passed under Sections 232 Cr.P.C. If the accused are not acquitted by that order on the ground that there is no evidence that the accused committed the offence, only then the accused should be. called upon to enter into his defence and adduce any evidence he may have in support thereof as provided under in Section 233 Cr.P.C.

In view of what has been said above, the fact that the accused have stated in reply to question No. 10 that they do not want to adduce any evidence in defence is of no avail. They cannot be debarred from adducing evidence in defence on that score. The learned Additional Sessions Judge, therefore, shall pass an order u/s 232 Cr.P.C. and, thereafter, call upon the petitioners to enter on their defence and adduce evidence in defence u/s 233 Cr.P.C. In case, the petitioners after the order is passed u/s 232 Cr.P.C. wishes to produce evidence in defence, they shall be permitted to produce evidence in defence, This procedure shall be followed by all the learned Addl. Sessions Judges, notwithstanding that the petitioners have said in reply to the question that they do not want to produce any evidence in defence.

The petition is finally disposed of.