Supreme Court in the matter namely Nar Singh v. State of Haryana (decided on 11th November 2014 and reported as 2014 Indlaw SC 767) dealt with the scope of section 313 of the Code of Criminal Procedure, 1973 (CrPC). The Court in the instant appeal was dealing with the issue of correctness of order of conviction passed against the Appellant under Section 302 of the Indian Penal Code and under Section 25(1B) of the Arms Act, 1959. The Prosecution in order to prove the guilt had relied upon circumstantial evidence. Appellants assailed order of convicting on the ground that none of the circumstances relied upon by the courts below established beyond reasonable doubt and those circumstances, either cumulatively or individually, were insufficient to establish the guilt of the accused.
Main thrust of argument of the Appellant was on the question of non-compliance of Section 313 of the CrPC i.e. whether non- compliance of the mandatory provisions of S. 313 Cr.P.C. vitiates the trial and conviction of the Appellant.
Section 313 provides for the examination of accused. It was observed that there are two kinds of examination u/s. 313 Cr.P.C. The first u/s. 313 (1) (a) Cr.P.C. that relates to any stage of the inquiry or trial; while the second u/s. 313 (1)(b) Cr.P.C. takes place after the prosecution witnesses are examined and before the accused is called upon to enter upon his defence. The former is particular and optional, but the latter is general and mandatory.
Section 313 CrPC is based on the fundamental principle of fairness. The attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he chooses to do so. Therefore, the court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response. This provision is mandatory in nature and casts an imperative duty on the court and confers a corresponding right on the accused to have an opportunity to offer an explanation for such incriminatory material appearing against him. Circumstances which were not put to the accused in his examination u/s. 313 CrPC cannot be used against him and have to be excluded from consideration. [vide Paramjeet Singh alias Pamma v. State of Uttarakhand, 2010 Indlaw SC 788; Sharad Birdichand Sarda v. State of Maharashtra 1984 Indlaw SC 432; and State of Maharashtra v. Sukhdev Singh1992 Indlaw SC 44]
It is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. At the same time, however, it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in cl. (a) of sub-s. (1) in S. 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under cl. (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him.
The statutory provision is based on the rules of natural justice for an accused, who must be made aware of the circumstances being put against him so that he can give a proper explanation to meet that case. If an objection as to S. 313 Cr.P.C. statement is taken at the earliest stage, the Court can make good the defect and record additional statement of the accused as that would be in the interest of all. When objections as to defective S. 313 Cr.P.C. statement is raised in the appellate court, then difficulty arises for the prosecution as well as the accused. When the trial court is required to act in accordance with the mandatory provisions of S. 313 Cr.P.C., failure on the part of the trial court to comply with the mandate of the law, in our view, cannot automatically enure to the benefit of the accused. Any omission on the part of the Court to question the accused on any incriminating circumstance would not ipso facto vitiate the trial, unless some material prejudice is shown to have been caused to the accused. Insofar as non-compliance of mandatory provisions of S. 313 Cr.P.C., it is an error essentially committed by the learned Sessions Judge. Since justice suffers in the hands of the Court, the same has to be corrected or rectified in the appeal. The attention of the accused must specifically be brought to inculpable pieces of evidence to give him an opportunity to offer an explanation, if he chooses to do so.
In Paramjeet Singh case (supra) it was held that the provisions of S. 313 Cr.P.C. make it obligatory for the court to question the accused on the evidence and circumstances against him so as to offer the accused an opportunity to explain the same. But, it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance, instead, he must show that such non-examination has actually and materially prejudiced him and has resulted in the failure of justice. In other words, in the event of any inadvertent omission on the part of the court to question the accused on an incriminating circumstance cannot ipso facto vitiate the trial unless it is shown that some material prejudice was caused to the accused by the omission of the court.
In regard to the question as to whether a trial would stand vitiated or not depends upon the degree of the error and the accused must show that non-compliance of S. 313 Cr.P.C. has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning u/s. 313 Cr.P.C., it cannot be inferred that any prejudice had been caused to the accused, even assuming that some incriminating circumstances in the prosecution case had been left out. When prejudice to the accused is alleged, it has to be shown that accused has suffered some disability or detriment in relation to the safeguard given to him u/s. 313 Cr.P.C. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. The burden is upon the accused to prove that prejudice has been caused to him or in the facts and circumstances of the case, such prejudice may be implicit and the Court may draw an inference of such prejudice. Facts of each case have to be examined to determine whether actually any prejudice has been caused to the appellant due to omission of some incriminating circumstances being put to the accused.
When such objection as to omission to put the question u/s. 313 Cr.P.C. is raised by the accused in the appellate court and prejudice is also shown to have been caused to the accused, then the appellate court may examine the convict or 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 u/s. 313 Cr.P.C. and the said answer can be taken into consideration.
Whenever a plea of omission to put a question to the accused on vital piece of evidence is raised in the appellate court, courses available to the appellate court can be briefly summarised as under:-
- Whenever a plea of non-compliance of S. 313 Cr.P.C. is raised, it is within the powers of the appellate court to examine and further examine the convict or the counsel appearing for the accused and the said answers shall be taken into consideration for deciding the matter. If the accused is unable to offer the appellate court any reasonable explanation of such circumstance, the court may assume that the accused has no acceptable explanation to offer;
- In the facts and circumstances of the case, if the appellate court comes to the conclusion that no prejudice was caused or no failure of justice was occasioned, the appellate court will hear and decide the matter upon merits.
- If the appellate court is of the opinion that non-compliance with the provisions of S. 313 Cr.P.C. has occasioned or is likely to have occasioned prejudice to the accused, the appellate court may direct retrial from the stage of recording the statements of the accused from the point where the irregularity occurred, that is, from the stage of questioning the accused u/s. 313 Cr.P.C. and the trial Judge may be directed to examine the accused afresh and defence witness if any and dispose of the matter afresh;
- The appellate court may decline to remit the matter to the trial court for retrial on account of long time already spent in the trial of the case and the period of sentence already undergone by the convict and in the facts and circumstances of the case, may decide the appeal on its own merits, keeping in view the prejudice caused to the accused.
It was further observed that in the facts and circumstances of each case, court should examine whether remand of the matter to the trial court would amount to indefinite harassment of the accused. When there is omission to put material evidence to the accused in the course of examination u/s. 313 Cr.P.C., prosecution is not guilty of not adducing or suppressing such evidence; it is only the failure on the part of the learned trial court. The victim of the offence or the accused should not suffer for laches or omission of the court. Criminal justice is not one- sided. It has many facets and we have to draw a balance between conflicting rights and duties.
Trial Court, thus, needs to be more careful in framing the questions and in ensuring that all material evidence and incriminating circumstances were put to the accused. However, omission on the part of the Court to put questions u/s. 313 Cr.P.C. cannot enure to the benefit of the accused.
