Sham Sunder Jalan vs State of U.T. Chandigarh

V.S. Aggarwal, J.—By this common judgment Criminal Revision Nos. 691 of 1995 and 685 of 1995 can conveniently be disposed of together.

The short question that arises for consideration in the above said two revisions is as to whether the learned Additional Sessions Judge, Chandigarh was justified in acting u/s 386(b)(i) of the Code of Criminal Procedure and remitting the case back to the learned trial court.

To appreciate the said question in controversy, reference can be made in brief to the facts of the case of the prosecution. The Punjab State Small Industries Corporation Ltd. had an account with the Indian Overseas Bank, Sector 7, Chandigarh. There is a periodical reconciliation of the accounts with the said Bank. During the said reconciliation the matter of cheating of the Punjab State Small Industries Corporation Ltd. precipitated. It is alleged that Chaman Lal was working as a Peon in "the Punjab State Small Industries Corporation Ltd. He had stolen a cheque No. 794804 in December, 1979 and handed it over to Bhupinder Kumar. The said cheque was drawn in favour of M/s Vijay Enterprises for an amount of Rs. 1,72,500 The signatures-of the Financial Manager of the Punjab State Small Industries Corporation Ltd. were forged on the cheque. The cheque was handed over to Vinod Kumar alias Mama and was deposited in the account at Katra Mohan, Chandni Chowk, Delhi. The said account had newly been opened on the introduction of Sham Sunder Jalan of M/s Sham and Company, Delhi. Lateron withdrawal of Rs. 75,000, 85,000 and Rs. 12,000 was effected from the said account vide different cheques of the account holder namely Vinod Kumar alias Mama. These withdrawals were made on 24th December, 1979, 26th December, 1979 and 10th January, 1980 respectively. On coming to know about it the investigation had been conducted. The specimen handwriting of Vinod Kumar alias Mama had been taken and Compared with the handwriting on the account opening form with Punjab National Bank, Chandni Chowk, Delhi. The handwriting expert gave the opinion that the disputed handwriting on the account opening form and the cheques was of Vinod Kumar alias Mama. Even the house of Bhupinder Kumar was searched and pertain documents were recovered. He did not give his specimen handwriting. The prosecution case further was that M/s Vijay Enterprises was a fictitious firm created by Vinod Kumar alias Mama, Bhupinder Kumar and Sham Sunder Jalan and that the accused persons had entered into a conspiracy and in that process'' caused unlawful loss to the Punjab State Small Industries Corporation Ltd.

The learned trial court framed charges against the accused-persons which included the two Petitioners with respect to offences punishable under Sections 420/467/468/471/380 read with Section 120-B of the Indian Penal Code. After the trial they were all held guilty by the learned trial court on 2nd June, 1990 with respect to the offences punishable under Sections 420 read with Section 120-B IPC, 467 read with Section 120-B IPC, 471 read with Sections 467 and 120-B IPC, 380 read with Section 120-B IPC. They were all convicted of the above said offences besides the fine having been imposed.

The accused-persons preferred appeals which were heard by the learned Additional Sessions Judge, Chandigarh. On 10th July, 1995 the learned Additional Sessions Judge, Chandigarh held that the statement recorded u/s 313 Code of Criminal Procedure was totally defective. It had been recorded in a casual and callous manner. The learned first appellate court further noted that no offer was made to segregate incriminating material against each of the accused and asked them the questions separately. A single roled question was asked from each of the accused which was improper. Accordingly, acting u/s 386(b)(i) of the Code of Criminal Procedure, the case was remitted to the trial court with a direction to decide the matter within three months and record the statements of the accused in accordance with law.

As against the said judgment of the first appellate court (Additional Sessions Judge, Chandigarh) the present revision petitions have been filed.

To appreciate the question in controversy reference can well be made to the relevant provisions of the Code of Criminal Procedure namely Section 313. It corresponds to Section 342 of the Code of Criminal Procedure, 1898, Section 313 has been redrafted but basically contains the same provision as was existing u/s 342 of the Code of Criminal Procedure, 1898. The provisions of Section 313 Code of Criminal Procedure requires the accused to be examined by the Court. This has been enacted "for the purpose of enabling the accused personally to explain any circumstances appearing in evidence against him". Section 313 Code of Criminal Procedure reads:

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.

The provision is salutory and is not an idle formality. As already pointed above the same has been enacted to ensure�that no prejudice is caused to the accused. The said purpose had been explained by the Supreme Court in the case of Ram Shankar Singh and Others Vs. State of West Bengal, . While noting that opportunity to explain the evidence appearing against the accused is not an idle formality and that it is a duty imposed on the Court, The Supreme Court explained the purpose of Section 313 Code of Criminal Procedure (in fact Section 342 of the Code of 1898) in the following words:

Duty is thereby imposed upon the Court to question the accused generally in a case after the witnesses for the prosecution have been examined to enable the accused to explain any circumstance appearing against him. This is a necessary corollary of the presumption of innocence on which our criminal jurisprudence is founded. The object of the section is to afford to the accused an opportunity of showing that the circumstance relied upon by the prosecution which may be prima facie against him, is not true or is consistent with his innocence. The opportunity must be real and adequate. Questions must be so framed as to give to the accused clear notice of the circumstances relied upon by the prosecution, and must give him an opportunity to render such explanation as he can of that Circumstance. Each question must be so framed that the accused may be able to understand it and to appreciate what use the prosecution desires to make of the evidence against him. Examination of the accused u/s 342 is not intended to be an idle formality, it has to be carried out in the interest of justice and fairplay to the accused : by a slipshod examination which is the result of imperfect appreciation of the evidence, idleness or negligence the position of the accused cannot be permitted to be made more difficult than what it is in a trial for an offence.

That being the purpose, necessarily we can travel back to the question that had. been asked while the accused had been examined. Needless to emphasize that 21 witnesses of the prosecution had been examined and many documents had been produced. One question was roled which reads:

Q-3 : It is in evidence that voucher is Ex.PW1/B and PW1/C Complainant is Ex.PWl/A. Supplementary complaint is Ex.PW1/B. Seizure memo is Ex.PW1/D. Relevant receipts are Ex.PW1/B, PW1/C, PW1/A, PW11/A and Ex.PW1/H. Seizure memo dated 17th April, 1980 is Ex.PW/C. Seizure memo dated 22nd May, 1980 is Ex.PW2/4 and photo copy of record is Ex.PW1/1 NCT, PW2/4. Recovery memo dated 10th July, 1980 is Ex.PW2/H. Admitted handwriting of Chaman Lal was taken into possession vide memo Ex.PW2/C on 21st January, 1981. Record concerning appointment of S.C. Garg and Parmod Kumar was taken into possession vide memo Ex.PW2/D and record Ex.P/8 to P/12 on 10th December, 1981. Initials of C.L. Garg and P.L. Garg were taken into possession vide memo Ex.PW2/D on 5th December, 1981. Vouchers were taken into possession vide memo Ex.PW2/K and Ex.PW2/C. Relevant pages are Ex.P13 to P7. Handwiriting of M.P. Gupta was taken into possession vide memo Ex.PW2/4. Receipt Bhupinder Kumar is Ex.PW3/8 and was taken into possession vide memo Ex.PW3/A. Cheque dated 7th December, 1979 of Rs 1,72,500 is Ex.PW4/A, extract of ledger is Ex.PW4/2. Photocopy of cheque book register is Ex.PW4/3 and recovery memo Ex.PW4/A, PW4/B and PW4/C, Letter No. PSSIC/Acct 9288 dated 21st January, 1980 is Ex.PW4/4 and letter dated 28th January, 1980 is Ex.PW4/5, recovery memo is Ex.PW4/D, signature of Sham Sunder on account opening form is Ex.PW5/A. Intoducer is Ex.PW5/B. On 7th June, 1979, M/s Vijay Enterprises vide deposit slip Ex.PW5/H, deposit slip No. 793055 dt. 5th June, 1979 Ex.PW5/D, Rs. 50,000 were credited to account No. 5697 dated 8th June 1979 and entry is Ex. PW5/P. Cheque dt. PLP 808651 and 908652 are Ex.PW5/Q and PW5/R. Sham Sunder and Company deposited a draft No. 61181 dt. 30th January 1979 Ex.PW5/s vide deposit slip, Ex.PW5/T. It was credited to account of Sham and Company on 2nd February, 1979 vide Ex.PW5/4, recovery memo dated 7th May, 1980 is Ex.PW5/V. Ex.PW5/T and PW5/U were taken vide memo Ex.PW5/X. partnership deed is PW6/B, Receipt Ex.PW6/C, PW6/D and PW6/E, Ex.PW6/F, PW6/G, PW6/S. Demand drafts is Ex.PW6/E. Pay in slip is Ex.PW6/H. Original Bill PW6/I. Demand drafts is Ex.PW3/E, invoice PW5/H, FIR is Ex.PW10/ A, seizure memo is Ex.PW10/2, cash memo is Ex.PW10/3 and PW10/4. Cash memo book Ex.PW10/4, counter foils Ex.PW10/. 5 and PW10/6, ledger account No. 29430 is Ex.PW12/B, memo, Ex.PW12/C, hotel register copy is Ex.PW5 and memo Ex.PW7/A. Statement of Vinod Kumar and Bhupinder Kumar regarding specimen signatures is Ex.PW1 1/2 and PW1 1/3 and order Ex.PW11/4 and Ex.PW1 1/5. The application is Ex.PW11/1. A fraud of Rs. 85,000 was committed through requisition slip dated 31st August, 1977 and of Rs, 92,000 through requisition slip dt. 25th February, 1978 and of Rs. 90,000 through requisition slip dated 25th January, 1979 and of Rs. 90,000 through requisition slip of 3rd May, 1979 and Rs. 95,000 through requisition slip dated 2nd June 1979-and Rs. 1,72,500 through cheque dated 17th December, 1979. Seizure memo is Ex.PW10/B. Partnership deed is Ex.PW10/2 memo regarding disclosure statement is Ex.PW10/C, PW10/D, PW10/E, seizure memo dated 19th May, 1980 is PW10/F receipt 2-in-one is Ex.PW10/9. Memo regarding Nishan Dehi of Ludhiana dated 21st May, 1980 in Ex.Px.PW10/H memo regarding search of shop is Ex.PW10/1, memo regarding search of house is PW8/A, and seizure memo dated 4th June, 1980 is Ex.PW4/B, seizure memo 19th June 1980 is Ex.PW10/J and ExPW10/M and Ex.PW10/N, Seizure memo dated 19th June, 1982 is Ex.PW19/D, Seizure memo 28th April, 1983 is Ex.19/R, CFSL report is Ex.PW12/A, PW12/B and 12/C and 12/D. Application for taking specimen handwriting is Ex.PW11/1, PW11/2, PW11/0, PW11/H, PW 11/Q, PW19/B, PW19/1 and report is Ex.PW4/1, Ex.PW4/2, PW4/3, PW4/4, PW4/5, PW4/6, PW4/7, PW4/8, ledger is Ex.PW4/9, form is PW5/A, PW5/B, PW5/C, PW5/D, PW5/D, PW5/P cheque is PW5/Q, PW5/R, PW5/S, PW5/T, Extract of ledger is Ex.PW5/4 seizure memo Ex.PWS/), P.W.5/W.P.W.5/A and appointment of Financial Manager and accountant is Ex.P.W.8, P.W.10, P.W.11, appointment chip is, Ex.P.W.12/A Sheet is Ex.P.W.12/B, Seizure memo is Ex.P.W.12/C Cheque dated 3rd May, 1970 is Ex.P.W.16/A, Seizure memo Ex.P.W.16/B, P..16/D. What you have to say about this?

Ans : "I do not know anything about this."

As indicated above, the answer given by each of the accused was that they do not know nothing about the matter. It is this question which became subject matter of the controversy and it has to be decided whether the same was in order or not.

At the outset it deserves to be mentioned as noted above that purpose of examination of an accused u/s 313 Code of Criminal Procedure is to enable him to explain the circumstances appearing in evidence against him. If the prosecution witnesses have deposed to any incriminating circumstances from which the guilt of the accused can be inferred, the accused person must be given an opportunity to explain the said incriminating circumstances. The accused need not be questioned about every important statement made by the witness in the witness box. It is only the portion of the evidence of the witness on which the accused person can give and explain that should be put to the accused. The question should be put in such a manner as to be easily understandable and they should not be lengthy. In one of the earlier decisions of the Supreme Court in the case of Tara Singh Vs. The State, , the importance of Section 342 of the Code of Criminal Procedure, 1898 was considered. It was stressed that question should be put in such a manner that an ordinary person can understand the same. In paragraph 30 the Supreme Court held:

It is not a proper compliance to read out a long string of questions and answers made in the committal court and ask whether the statement is correct. A question of that kind is misleading. It may mean either that the questioner wants to know whether the recording is correct, or whether the answers given are true, or whether there is some mistake or misunderstanding despite the accurate recording. In the next place, it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them, 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 circumstances which appear against him. The questioning must therefore be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder.

Same question was again considered by the supreme Court in the case of State of Andhra Pradesh Vs. Cheemalapati Ganeswara Rao and Another, . It was again emphasized that question should be put to the person in small precise form so that accused can explain each of the circumstance and evidence against him.

The effect of non compliance of such a provision had also been. noted in a string of judgments from the supreme Court. Reference to some of them would be in the fitness of things. In the case of Tara Singh v. The State (supra) the supreme Court held that if there is an omission to comply with the provisions pertaining to recording the statement of the accused, then it would fall within the category of curable irregularity. It was held:

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 Section 342, Code of Criminal Procedure, is so gross in this case that I feel there is grave likelihood of prejudice.

Same view prevailed with the Supreme Court in subsequent decision of the Supreme Court in the case of Chikkarange Gowda and Others Vs. State of Mysore, . In paragraph 17 the Court held:

It is necessary now to say a few words about the failure to comply with the provisions of Section 342, Code of Criminal Procedure This Court has, on more than one occasion, stated that compliance with the provision of S.342 is not a mere idle formality and we are in agreement with the comment made by the learned Judges of the High Court that in this case the examination of the Appellants to enable them to explain the circumstances appearing against them was neither full nor very satisfactory. We also agree with them that no serious prejudice was caused-such as to vitiate the vitiate the whole trial.

Similarly, in the case C.T. Muniappan v. The State of Madras AIR 1961 S.C. 175, detailed questions had been asked by the Magistrate. The Supreme Court noted that there was an omission to question the accused specifically about what the witnesses said. Finally, it was concluded that no prejudice was caused and in paragraph 8 held:

We do not think that the omission to question the Appellant specifically about what the witnesses said about informing him of such collection has caused any prejudice to him. Even if there was any defect in his examination under S.342 Code of Criminal Procedure, the defect amounts merely to an irregularity and is not such as to call for our interference with the orders passed by the courts below especially when no complaint on this ground was raised before the High Court.

In the same direction further light is thrown by the decision in the case of Rama Shankar Singh and Ors. v. State of West Bengal (supra). In the cited case the prosecution relied upon two circumstances against the accused. They were that when the accused came out of the house of one Ram Deo, she had blood stained knife in her hands and that when she was arrested from the godown, the knife was in her hands. During the statement of the accused this matter of evidence was not put to her and her intention was not drawn towards it. The Supreme Court held that beyond at bare denial, there is nothin else that the counsel could suggest. There was no prejudice that had been caused and thereupon the conclusions drawn were:

Failure to comply with the provisions of Section 342 is an irregularity and unless injustice is shown to have resulted there from a mere irregularity is by itself not sufficient to justify an order of retrial. The appellate court must always consider whether by reason of failure to comply with a procedural provision, which does not affect the jurisdiction of the court, the accused have been materially prejudiced. In the present case, we are of the view, having regard to the circumstances, that the Appellants have not been prejudiced because of failure to examine them strictly in compliance of the terms pf S.342 of the Code and that view is strengthened by the fact that the plea was not raised in the High Court by their counsel who had otherwise raised numerous questions in support of the case of the Appellants.

A year later in the case State of Andhra Pradesh v. Cheemalapati Ganeswara Rao and Anr. (supra) one of the argument pertaining to the defective recording of the statement of the accused u/s 342 Code of Criminal Procedure 1898 was that long and involved questions were put to the accused and reference was made to a number of documents and the documents were not made available to the accused. After going through the record, the Supreme Court held that the accused understood the questions and no prejudice, therefore, was caused. In paragraph 42 it was held:

While we are disposed to agree with the learned Counsel that the questions embrace a number of matters and that it would have been better if those matters had been made the subjects of separate questions, the answers given by the Respondents clearly show that they understood the questions and wherever possible they have given complete answers to those questions. That is to say, they have given their explanation regarding the circumstances appearing in the evidence set out in the questions and wherever that was not feasible they have said that they would doso in their written statements. In fact written statements have been filed by-each of them in which every point left over has been fully answered.

In(this regard the ratio of the decision in the case of Makan Jivan and Ors. v. The State of Gujarat 1971 Crl. L.J. 1310, also is illuminating. While recording the statement of the accused, the trial court had read out the statement made by the accused in the committal court and asked them as to what they had to say about the prosecution evidence. The various circumstances and evidence was not put to the accused in different questions. Once again the Supreme Court noted that it was a curable irregularity and prejudice must be shown to have caused. In paragraph 15 the Court held:

In the instant case what the trial court has done is that after reading out the statements made by the accused in the committal court, it merely asked them as to what they had to say about the prosecution evidence recorded in their presence. This is a wholly unsatisfactory way of questioning the accused. The trial court had a duty to put to each of the accused the various circumstances appearing against them and further put the prosecution case generally for the purpose of affording the accused an opportunity to explain the circumstances appearing against them. There is no doubt that the examination of the accused u/s 342, Code of Criminal Procedure in this case is highly defective. But that does not by itself vitiate the trial. It is for the defence to satisfy the Court that because of the defect in the procedure adopted accused have been prejudiced.

Reference with advantage may also be made to the subsequent decision of the Supreme Court in the case of Ajit Kumar Chowdhry v. State of Bihar 1972 Crl. L.J. 1315, In the cited case the prosecution alleged that the accused had committed a theft of the railway property. The said accused had denied the recovery of the same. It was not put to the accused that the said property was stolen and there was an omission in this regard. Once again the Supreme Court concluded that no prejudice had been caused and held:

Unless injustice results from an irregularity in complying with Section 342, interference on this ground would not be justified. In the present case when the Appellant denied the recovery of railway mirror in answer to question No. 1 no prejudice or injustice can be considered to have been caused to him by the court''s failure to refer to the fact of the mirror being stolen.

Same view prevailed with the Supreme Court in the case of Shivaji Sahebrao Bobade and Anr. v. State of Maharashtra 1973 Crl. L.J. 1783, where the answer given to the said question was:

It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable explanation of such circumstances, the court may assume that no acceptable answer exists and that even if the accused had been questioned at the proper time in the trial court he would not have been able to furnish any good ground to get out of the circumstances on which the trial court had relied for its conviction. In such a case, the court proceeds on the footing that though a grave irregularity has occurred as regards compliance with Section 342, Code of Criminal Procedure, the omission has not been shown to have caused prejudice to the accused. In the present case, however-, the High Court, though not the trial court has relied upon the presence of blood on the pants of the blood group of the deceased. We have not been shown what explanation the accused could have offered to this chemical finding particularly when we remember that his answer to the question regarding the human blood on the blade of the knife was ''I do not know''. Counsel for the Appellants could not make out any intelligent explanation and the ''blood'' testimony takes the crime closer to the accused. However, we are not inclined to rely over much on this evidentiary circumstance, although we should emphasise how this inadvertence of the trial court had led to a relevant fact being argued as unavailable to the prosecution. Great care is expected of Sessions Judges who try grave cases to collect every incriminating circumstance and put it to the accused even though at the end of a long trial the Judge may be a little fagged out.

More close to the facts would be the decision of the Supreme Court in the case of Dhanpat Singh Jain v. State of Maharashtra Crl. L.J. 246. Herein also the Supreme Court held that the court has to determine whether the prejudice had been caused to the accused or not. In the cited case after recording the entire evidence the accused was simply asked as to whether he had heard the evidence and what he has to say in this regard. He filed a reply in the trial court. The Supreme Court noted that since the accused was fully aware of the nature of the allegations, no prejudice was caused and rejected a similar plea by holding:

It is clear to us that the Appellant was fully aware of the nature of the allegations made against him. He had not merely given a detailed explanation u/s 108 of the Act, of the circumstances in which he said he was arrested with the gold bars, but, he had also filed an elaborate written statement. He had indicated that this is the only form in which he would give his explanation. It is true that the general form of questions put does not strictly comply with the provisions of Section 342, Code of Criminal Procedure. But, we are unable to hold that the Appellant suffered any injustice for this reason. Indeed, he had not even raised such a question in the trial Court or before the High Court. If he had done so, the alleged defect could have been easily cured. The objection seems to us to be most technical and flimsy. The defect could not have possibly vitiated the conviction of the Appellant.

Consequently, it is obvious from the aforesaid that though it is the duty of the trial court to put all the relevant questions and incriminating material to each of the accused separately, the questions should be small so that the accused can answer the same effectively. There is no over emphasising that the statement recorded by the learned trial court of the accused was most unsatisfactory. He should have dissected the questions and put the same to each of the accused. But can it be stated that the same has caused prejudice to the Petitioner-accused. Each of them had answerd that they do not anything about it. Even if the questions were put separately and the accused-again answered that he do not know anything, the net result would have been the same. It is not a case where accused are illiterate or they could state that they did not understand the evidence or the questions. When it is a case of denial, in toto they cannot turn around and allege that prejudice has been caused. In fact when no prejudice as noted above is caused, the learned Additional Sessions Judge patently fell into an error in simply noting that because the statement had not been recorded of the accused properly, it must be so done. No useful purpose would be served otherwise again recording the evidence. The order of the learned Additional Sessions Judge, therefore, cannot be sustained.

At this stage, it requires to be noted that some of the accused had not preferred the revision against the order passed by the learned Additional Sessions Judge. But we know from the decision of the Supreme Court in the case of Ajit Singh v. State of Haryana 1996 (1) RCR 667, that if some of the accused do not prefer an appeal, they would be entitled to the benefit which may accrue to the other accused. Therefore, once the order of the learned Additional Sessions Judge is being set aside, the remitting of the case pertaining to the other accused would automatically would also be set aside.

As a result of the reasons given above, the petitions are allowed. The order passed by the learned Additional Sessions Judge is set aside. It is directed that the learned Additional Sessions Judge will hear and decide the appeals on their merits. Keeping in view that it is an old litigation, the same may be heard within a period of six months from the date of receipt of copy of this judgment.