Supreme Court of India
The State Of Maharashtra vs Dr. Praful B. Desai on 1 April, 2003 so long as the Accused and/or his pleader are present when evidence is recorded by video conferencing that evidence is being recorded in the "presence" of the accused and would thus fully meet the requirements of Section 273, Criminal Procedure Code. Recording of such evidence would be as per "procedure established by law".
Recording of evidence by video conferencing also satisfies the object of providing, in Section 273, that evidence be recorded in the presence of the Accused. The Accused and his pleader can see the witness as clearly as if the witness was actually sitting before them. In fact the Accused may be able to see the witness better than he may have been able to if he was sitting in the dock in a crowded Court room. They can observe his or her demeanour. In fact the facility to play back would enable better observation of demeanour. They can hear and rehear the deposition of the witness. The Accused would be able to instruct his pleader immediately and thus cross- examination of the witness is as effective, if not better. The facility of play back would give an added advantage whilst cross-examining the witness. The witness can be confronted with documents or other material or statement in the same manner as if he/she was in Court. All these objects would be fully met when evidence is recorded by video conferencing. Thus no prejudice, of whatsoever nature, is caused to the Accused. Of course, as set out hereinafter, evidence by video conferencing has to be on some conditions. This is not virtual reality, it is actual reality. One is actually seeing and hearing what is happening. Video conferencing is an advancement in science and technology which permits one to see, hear and talk with someone far away, with the same facility and ease as if he is present before you i.e. in your presence. In fact he/she is present before you on a screen. Except for touching, one can see, hear and observe as if the party is in the same room. In video conferencing both parties are in presence of each other. 299 CrPC (To be read with section 33 of Indian Evidence Act ,1872) Supreme Court of India
Nirmal Singh vs State Of Haryana on 30 March, 2000
the sole question that arose for consideration is under what circumstances and by what method, the statements of persons could have been tendered in the case for being admissible under Section 33 of the Evidence Act and whether conviction can be based upon it ?
Section 299 of the Code of Criminal Procedure consists of two parts. The first part speaks of the circumstances under which witnesses produced by the prosecution could be examined in the absence of the accused and the second part speaks of the circumstances, when such deposition can be given in evidence against the accused in any inquiry or trial for the offence with which he is charged. This procedure contemplated under Section 299 of the Code of Criminal Procedure is thus an exception to the principle embodied in Section 33 of the Evidence Act inasmuch as under Section 33, the evidence of a witness, which a party has no right or opportunity to cross-examine is not legally admissible. Being an exception, it is necessary, therefore, that all the conditions prescribed, must be strictly complied with.
In other words, before recording the statement of the witnesses, produced by the prosecution, the Court must be satisfied that the accused has absconded or that there is no immediate prospect of arresting him, as provided under first part of Section 299(1) of the Code of Criminal Procedure. When the accused is arrested and put up for trial, if any, such deposition of any witness is intended to be used as an evidence against the accused in any trial, then the Court must be satisfied that either the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience, which would be unreasonable. Any one of these circumstances, which permits the prosecution to use the statements of such witnesses, recorded under Section 299(1) must be proved and the Court concerned must be satisfied and record a conclusion thereon. ( Mere bald statement by prosecution that witness is ill and cannot move is not sufficient , the satisfaction of the court required under 299 has to be proved like any other fact)
In other words, like any other fact, it must first be proved by the prosecution that either the deponent is dead or is incapable of giving evidence or cannot be found or his presence cannot be procured without an amount of delay, expense or inconvenience which, under the circumstances would be unreasonable.
Since the law empowers the Court to utilise such statements of persons whose statements were recorded in the absence of the accused as an exception to the normal principles embodied in Section 33 of the Evidence Act, inasmuch as the accused has been denied of the opportunity of cross-examining the witnesses, it is, therefore, necessary that the pre-conditions for utilising such statements in evidence during trial must be established and proved like any other fact. There possibly cannot be any dispute with the proposition of law that for taking the benefits of Section 299 of the Code of Criminal Procedure, the conditions precedent therein must be duly established and the prosecution, which proposes to utilise the said statement as evidence in trial, must, therefore, prove about the existence of the pre- conditions before tendering the evidence.
(But when the Appellate Court examines the records of the proceedings and comes to a conclusion that in fact those persons have died long before the summons on them to appear as witness, could be issued, the evidence thus tendered cannot be ignored from consideration. Even though the lower court fails to go into the question of satisfaction of the pre requisites for S. 299)
(conviction can also be based on such statement if they are fit for reliance by the courts concerned and are credible as they are treated as evidence )
In Jose vs. The State of Kerala, AIR 1973 SC 944, Supreme Court had an occasion to examine the question of treating the evidence of a witness in the committal Court as substantive evidence in trial under Section 33 of the Evidence Act, Court had recorded the fact that at the time of trial, the witness had left for Coorg and was not available and it was not possible to serve summons on him and even a non-bailable warrant issued by the Court was returned with the endorsement not available and it is under those circumstances, the learned Sessions Judge brought on record the statement made by the eye witness before the committal Court as substantive evidence and marked the same as P-25. SupremeCourt negatived the contention of the accused and held that the said statement had rightly been treated as an evidence during trial.
Section 231 and section 313 of Cr.pc
313 Cr.PC
(this section applies to all forms of trial , including summary , summon or warrant trial and it must be read with subject to provision of section 205 , also oath cannot be administered in 313 and consequently it is not evidence. For the same reason he cannot be punished for perjury if accused does lie in statement of 313 same is the case for refusal to answer . Statement of accused under 313 is not substantive evidence. Also omission to comply with 313 (b) may not ipso facto vitiate the proceedings even though its a mandatory provision , test is whether prejudiced has been caused to the accused)
Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan; AIR 2013 SC 3150
The purpose of empowering the court to examine the accused under section
313, Cr.P.C is to meet the requirement of the principle of natural justice audi alteram
partem (that no one should be condemned unheard). This means that the accused may
be asked to furnish some explanation as regards the incriminating circumstances
associated against him and the court must take note of such explanation. In a case of
circumstantial evidence, the same is necessary to decide whether or not the chain of
circumstances is complete.
The object of examination of the accused under section 313, Cr.P.C:
A.- to establish a direct dialogue between the court and the accused and to
put every important incriminating piece of evidence to the accused and
grant him an opportunity to answer and explain them
B - to test the veracity of the prosecution case.
Sanatan Naskar & Another v. State of West Bengal; AIR 2010 SC 3507
The examination of the accused is not a mere formality, the
questions put to the accused and answers given by him, have great use.
The scope of section 313 of the Cr.P.C. is wide and is not a mere
formality. The object of recording the statement of the accused under
section 313, Cr.P.C. is to put all incriminating evidence to the accused so as
to provide him an opportunity to explain such incriminating circumstances
appearing against him in the evidence of the prosecution.
In Dharnidhar v. State of U.P. & Others; 2010 AIR SCW 5658, the court
held that the proper methodology to be adopted by the court for recording the
statement of the accused under section 313, Cr.P.C., is to invite attention of the accused to the incriminating circumstances and evidence and invite his explanation. In other words, it provides an opportunity to an accused to tell to the court as to what is the truth and what is his defence.
In the case of Dehal Singh v. State of Himachal Pradesh; AIR 2010 SC
3594, the court held that the statement of the accused under section 313, Cr.P.C. is
recorded without administering oath. Therefore, it cannot be treated as evidence
within the meaning of section 3 of the Evidence Act, 1872.
Section 313, Cr.P.C. (1) (b) casts a duty on court to give an opportunity to the
accused to explain the incriminating material against him.
(The word "personally" would show that the opportunity afforded to the
accused to explain his stand on the incriminating circumstances is in addition
to what his Counsel would have already done by way of cross-examination.
Therefore, it would be premature to examine the accused to explain personally
any circumstance when he has not exhausted the opportunity to cross examine
the witnesses.)
The words “Explain any circumstance…….in the evidence against him”
Under section 313, Cr.P.C. (1)(b), it is mandatory for the trial Judge to
put to the accused every such piece of evidence which appears incriminating
against him and reply of the accused shall be sought thereto.
The accused may or may not avail the opportunity for giving his
explanation.
State of U.P v. Mohd. Iqram & Anr; AIR 2011 SC 2296
Attention of the accused must specifically be drawn to inculpatory
pieces of evidence to give him an opportunity to offer an explanation if he
chooses to do so. Court is under legal obligation to put all incriminating
circumstances before accused to 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. Circumstances not put to the accused in his examination under section 313, cannot be used against him.
Can Examination U/s. 313, Cr.P.C. more than once? Rajan Dwivedi v. CBI; 2008 Cri.L.J.; 1440 DEL
If examination of the accused under section 313 has taken place, the
court can call the accused to answer incriminating circumstances again. There
is no implied prohibition on calling upon the accused to again answer
questions. However, power to call the accused to answer questions more than
once, after conclusion of the prosecution evidence should not be used in a
routine or mechanical manner.
Emperor vs Nathu Kasturchand Marwadi; 1924 (27) BOM LR 105
Words "Shall after the witnesses for the prosecution have been examined” etc.
The provisions of section 313, Cr.P.C. are for the benefit of the accused.
Section 313 (1)(b) is mandatory in nature and in order to provide an
opportunity to the accused to obtain the full benefit of the section, it is the duty
of the court to examine the accused after cross-examination and reexamination, if any of the prosecution witnesses is over.
Emperor v. Bhau Dharma; (1928) 30 Bom LR 385
If fresh prosecution witnesses are examined after the examination of the
accused, it is obligatory to further examine the accused under section 313,
Cr.P.C.
can a conviction be based on such an admission of guilt made in the written statement followed by the oral statement under section 313 of the Code?
can a conviction be based on such an admission of guilt made in the written statement followed by the oral statement under section 313 of the Code?
51. That brings us to the question whether such a statement recorded under Section 313 of the Code can constitute the sole basis for conviction. Since no oath is administered to the accused, the statements made by the accused will not be evidence Stricto sensu. That is why Sub-section (3) says that the accused shall not render himself liable to punishment if he gives false answers. Then comes Sub-section (4) which reads:
(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 had committed.
Thus the answers given by the accused in response to his examination under Section. 313 can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, Sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. See State of Maharashtra v. R.B. Chowdhari MANU/SC/0085/1967 : 1968CriLJ95 . This Court in the case of Hate Singh v. State of Madhya Bharat MANU/SC/0073/1951 : 1953 Cri. L.J. 1933 held that an answer given by an accused under Section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab MANU/SC/0137/1962 : [1963]3SCR678 this Court held that if the accused confesses to the commission of the offence with which he is charged the Court may, relying upon that confession, proceed to convict him.
Supreme Court of India
Ramnaresh & Ors vs State Of Chhattisgarh on 28 February, 2001
In terms of Section 313 Cr.P.C., the accused has the freedom to maintain silence during the investigation as well as before the Court. The accused may choose to maintain silence or complete denial even when his statement under Section 313 Cr.P.C. is being recorded, of course, the Court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law. Right to fair trial, presumption of innocence unless proven guilty and proof by the prosecution of its case beyond any reasonable doubt are the fundamentals of our criminal jurisprudence. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in relation to any of these protections substantially. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable.
It is a settled principle of law that the obligation to put material evidence to the accused under Section 313 Cr.P.C. is upon the Court. One of the main objects of recording of a statement under this provision of the Cr.P.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under Section 313 Cr.P.C., in so far as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law.
Whether examination of the accused under section 313,
Cr.PC can be dispensed with in a warrant case?
Basavaraj R. Patil v. State ; AIR 2000 SC 3214, the Apex
Court has held that as a general rule, it is necessary that in all cases the
accused must answer the questions put to him under section 313(1)(b)
by personally remaining present in the court. However, if remaining
present involves undue hardship and large expense the court can
dispense such examination even in warrant cases after adopting a
measure to comply with the requirements of section 313, Cr.P.C. in a
substantial manner.
For this the accused must be required to file before the court an
application with an affidavit sworn-in by himself with the prayer that he
may be allowed to answer the questions without his physical presence in
the court on account of justifiable exigencies. The application and the
affidavit of the accused must also contain the narration of undue
hardship and large expense etc., the assurance that no prejudice would
be caused to him by dispensing with his personal presence and an
undertaking that he would not take any grievance on that score at any
stage of the case.
It is also observed that section 313, Cr.P.C. does not envisage the
examination of the Counsel in place of the accused and reiterated the
law laid down by the Apex Court by three Judges Bench in Bibhuti
Bhushan Das Gupta v. State of West Bengal; AIR 1969 SC 381 and
later on followed in Shivaji Sahebrao Bobade v. State of
Maharashtra; (1973) 2 SCC 793.
In K. Anbazhagan v. Supdt. of Police; AIR 2004 SC 524, SC reiterated the general rule that the
accused must answer the questions put to him under section 313 (1)(b),
by personally remaining in the court. And only in exceptional
circumstances of undue hardship and large expense etc., the general rule
of personal presence can be dispensed with. In this case the court held
that the accused was holding the position of Chief Minister of Tamil
Nadu and there was no exceptional exigencies or circumstance such as
to undertake a tedious long journey or incur a whopping expenditure to
appear in the court to answer the questions under section 313, Cr.P.C.
Thus, none of the facts which have weighed with the consideration of
the court in Basavaraj R. Patil case (supra), were available in the given
case.
(In Inspector, Customs, Akhnorr, Jammu and Kashmir v.
Yashpal; (2009) 4 SCC 769, Basavaraj R. Patil case (supra) was
followed in less serious warrant case) (THIS IS TO BE NOTED THAT SINCE ITS AN EXCEPTIONAL SITUATION IT HAS TO BE FOLLOWED IN EXCEPTIONAL CIRCUMSTANCES AND IN LESS SERIOUS CASES GENERALLY)
[Tara Singh v. State of Punjab; AIR 1951 SC 44]
It is not sufficient compliance to string together long series of facts and ask the
accused what he has to say about them. He must be questioned simply and separately
about each material circumstance which is intended to be used against him.
The questioning must be fair and framed in a form which an ignorant and
illiterate person may be able to appreciate and understand. Even if the accused is not
illiterate, his mind is apt to be perturbed when he is facing a trial of murder.
Therefore, it is required that each material circumstance should be put simply and
separately in a way that an illiterate person can appreciate and understand. Naval Kishorev. State of Bihar (2004) 7 SCC 502
The practice of putting the entire evidence against the accused in a single
question and giving an opportunity to explain the same is improper as the accused may not be in a position to give a rational and intelligent explanation.
This opportunity of examination under section 313 given to the accused, is part
of a fair trial and if it is done in a slipshod manner, it may result in imperfect
appreciation of evidence.
(It is imperative that each and every question must be put to the accused
separately and their answers must also be recorded separately) State of Maharashtra v. Goraksha Ambaji Adsul; 2006 Cri.L.J. (NOC) 45]
Recording of statement of the accused persons simultaneously and putting
same set of questions to all the accused may cause prejudice to the accused, hence, it
was held not proper.
(Recording of statements under 313 shall be in full and not in monolithic answers or reducing the statements to a memoramdum or reducing statement to a text without context is impermissible.)
In Munish Mubar v. State of Haryana; AIR 2013 SC 912
the court held that it is obligatory on the part of
the accused while being examined under section 313, Cr.P.C. to furnish some
explanation with respect to the incriminating circumstances associated with him and
the court must take note of such explanation even in a case of circumstantial evidence
so as to decide whether or not the chain of circumstances is complete.
court observed that “circumstantial
evidence is a close companion of actual matrix, creating a fine network through
which can be no escape for the accused, primarily, because such facts when taken
as a whole, do not permit us to arrive any other inference but one, indicating the
guilt of accused.”
In Madhu @ Madhurantha and Another v. State of Karnataka; AIR 2014
SC 394 –, the court held that in cases
where the accused was last seen with the deceased victim (last seen – together theory)
just before the incidence, it becomes the duty of accused to explain the circumstances
under which the death of victim occurred and further it is obligation on the part of the
accused while being examined under section 313,Cr.P.C. to furnish some explanation
regarding the incriminating circumstances associated with him. And the court must
take note of such explanation even in a case of circumstantial evidence to decide
whether or not the chain of circumstances is complete.
Sanatan Naskar & Another v. State of West Bengal; AIR 2010 SC
3507
The courts may rely on a portion of the statement of the accused and find
him guilty in consideration of other evidence against him led by the
prosecution. But such statement of under section 313, Cr.P.C. should not be
considered in isolation but in conjunction with the prosecution evidence.
This is the statement which the accused makes without fear or right
of the other party to cross examine him. However, if the statements made
are false, the court is entitled to draw adverse inferences and pass
consequential orders, as may be called for, in accordance with law.
Conviction cannot be based merely on the statement of accused under
section 313, Cr.P.C.
Sanatan Naskar & Another v. State of West Bengal;
AIR 2010 SC 3507
Conviction of the accused cannot be based merely on the statement
made under section 313, Cr.P.C. as it cannot be regarded as a substantive
piece of evidence.
But such statement may act as a relevant ground for consideration of other evidence:
In Rafiq Ahmad @ Rafiq v. State of U.P.; AIR 2011 SC 3114, the
court observed:-
“It is true that the statement under section 313, Cr.P.C. cannot be the sole
basis for conviction of the accused but certainly it can be a relevant
consideration for the courts to examine, particularly when the prosecution
has otherwise been able to establish the chain of evidence.
Principles emanating from judgment of Supreme court in Basavaraj R. Patil Vs. State of Karnataka AIR 2000 SC 3214. for the procedure to be followed in sessions or warrant trial where accused is unable to appear before court for the personal examination.
1.The word "shall" in Clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the Court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the Court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner.
2. If the accused (who is already exempted from personally appearing in the Court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters: (a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers, (b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning, (c) An undertaking that he would not raise any grievance on that score at any stage of the case.
3. If the court is satisfied of the genuineness of the statements made by the accused in the said application and affidavit it is open to the court to supply the questionnaire to his advocate (containing the questions which the court might put to him under Section 313 of the Code) and fix the time within which the same has to be returned duly answered by the accused together with a properly authenticated affidavit that those answers were given by the accused himself. He should affix his signature on all the sheets of the answered questionnaire. However, if he does not wish to give any answer to any of the questions he is free to indicate that fact at the appropriate place in the questionnaire [as a matter of precaution the Court may keep photocopy or carbon copy of the questionnaire before it is supplied to the accused for answers]. If the accused fails to return the questionnaire duly answered as aforesaid within the time or extended time granted by the court, he shall forfeit his right to seek personal exemption from court during such questioning.
4. This position is to be only to be resorted in exception situations and exception circumstances.
The reasoning of the court to give this special procedure in exceptional situation was :
"It is common knowledge that most of such written statements (be in sessions trial or warrant trial), if not all, are prepared by the counsel of the accused. If such written statements can be treated as statements directly emanating from the accused, hook, line and sinker, why not the answers given by him in the manner set out hereinafter, in special contingencies, be afforded the same worth."
Adverse Inference against the accused in context of 313 :
In the case of Phula Singh v. State of Himachal Pradesh; AIR 2014
SC 1256 – , the court held that
accused has the right to maintain silence during examination or even remain
in complete denial when his statement under section 313, Cr.P.C. is being
recorded. But in such an event adverse inference could be drawn against
him.
Ram Naresh and Others v. State of Chhattisgarh; AIR 2012 SC 1357 -
the court held that the accused has a duty
to furnish an explanation in his statements under section 313, Cr.P.C.
regarding any incriminating material that has been produced against him. If
the accused has been given the freedom to remain silent during the
investigation as well as before the court, then the accused may choose to
maintain silence or even remain in complete denial when his statement
under section 313, Cr.P.C. is being recorded. However, in such an event,
the court would be entitled to draw an inference, including such adverse
inference against the accused as may be permissible in accordance with law.
The option lies that the accused to maintain silence coupled with
simplicitor denial or, in the alternate to explain his version and reasons, for
his alleged involvement in the commission of crime.
Munna Kumar Upadhyay v. State of Andhra Pradesh; AIR 2012 SC 2470
False denial made by the accused of established facts can be used
as incriminating evidence against him.
Raj Kumar Singh @ Raju v. State of Rajasthan; AIR 2013 SC 3150
An adverse inference can be taken against the accused only and
only if the incriminating materials stood fully established and the accused is
not able to furnish any explanation for the same.
Randhir Singh v. State ; 1980 Cri.L.J. 1397 (Del - DB)
The statement of the accused made on his behalf by his Counsel in
the bail application cannot be read as his admission as it was not put to the
accused in his statement under section 313, Cr.P.C.
(The statement of co-accused under section 313, Cr.P.C. cannot be used
against main accused for obvious reason that the accused has no
opportunity to cross examine the co-accused. But the answers given by the
accused may be put in evidence for or against him in any other inquiry or
trial.)
In Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan; AIR 2013
SC 3150, the court observed that no matter how weak the evidence of the
prosecution may be, it is the duty of the court to examine the accused and
seek his explanation as regards the incriminating material surfaced against
him.
The court also observed that the circumstances which are not put to
the accused in his examination under section 313, Cr.P.C., cannot be used
against him and have to be excluded from consideration.
Whether no answer/evasive or untrustworthy answer by the accused
under section 313, Cr.P.C. justifies his conviction on this account?
In Nagaraj v. State (Tamil Nadu); (2015) 4 SCC 739, the
Supreme Court observed that in the impugned judgement the High Court
has found the answers of the accused under section 313, Cr.P.C. evasive
and untrustworthy and held this to be another factor indicating his guilt.
Making the above observation, the Supreme Court clarified the legal
position in this context, thus:-
“In Parsuram Pandey v. State of Bihar; (2004) 13 SCC 18
the Supreme Court has held that section 313, Cr.P.C. is imperative to
enable an accused to explain away any incriminating circumstances
proved by the prosecution. It is intended to benefit the accused and
by way of its corollary, it benefits the court also in reaching the final
conclusion and its intention is not to nail the accused but to comply
with the most salutary and fundamental principle of natural justice
i.e. audi alteram partem.”
In Sher Singh v. State of Haryana; AIR 2015 SC 980, the
Supreme Court has recently clarified that because of the language
employed in section 304-B, IPC which deals with dowry death, the
burden of proving innocence shifts to the accused which is in stark
contrast and dissonance to a person‟s right not to incriminate
himself. It is only in the back-drop of section 304-B that an accused
must furnish credible evidence which is indicative of his innocence
either under section 313, Cr.P.C. or by examining himself in
witnessbox or through defence witnesses, as he may be best advised.
Having made this clarification, refusal to answer any question put to the
accused by the court in relation to any evidence that may have been
presented against him by the prosecution or the accused giving an
evasive or unsatisfactory answer, would not justify the court to
record a finding of guilt on this score. The burden is cast on the
prosecution to prove its case beyond reasonable doubt and once this
burden is met , the statements under section 313 assume significance
to the extent that the accused may cast some incredulity on the
prosecution version.
POSITION AS TO NON COMPLAINCE WITH SECTION 313 :-
In Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra; (AIR 1973 SC 2622),
the Court considered the fallout of the omission to put a
question to the accused on vital circumstance appearing against him and the Court has
held that the appellate court can question the counsel for the accused as regards the
circumstance omitted to be put to the accused and held as under:-
“…It is trite law, nevertheless fundamental, that the prisoner's attention should
be drawn to every inculpatory material so as to enable him to explain it. This is
the basic fairness of a criminal trial and failures in this area may gravely
imperil the validity of the trial itself, if consequential miscarriage of justice has
flowed. However, where such an omission has occurred it does not ipso facto
vitiate the proceedings and prejudice occasioned by such defect must be
established by the accused. In the event of evidentiary material not being put to
the accused, the Court must ordinarily eschew such material from
consideration. 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 313, Cr.P.C., the omission has not
been shown to have caused prejudice to the accused…”
The same view was reiterated by the Court in State (Delhi Administration) v. Dharampal; AIR 2001 SC 2924
“Thus it is to be seen that where an omission, to bring the attention of
the accused to an inculpatory material has occurred that does not ipso
facto vitiate the proceedings. The accused must show that failure of
justice was occasioned by such omission. Further, in the event of an
inculpatory material not having been put to the accused, the appellate
Court can always make good that lapse by calling upon the counsel for
the accused to show what explanation the accused has as regards the
circumstances established against the accused but not put to him…”
In Gyan Chand and Others v. State of Haryana; AIR 2013 SC 3395,
Plea to non-compliance of the
provisions of section 313, Cr.P.C. was taken for the first time before the
Supreme Court. But there was no material showing as to what prejudice has
been caused to the accused persons, if facts of conscious possession was not
put to them. Thus , the court held that the trial was not vitiated for noncompliance
of the provisions of section 313, Cr.P.C. SC Bahri v. State of Bihar; AIR 1994 SC 2420
Mere defective/improper examination under section 313, Cr.P.C. is no
ground for setting aside the conviction of the accused, unless it has resulted in
prejudice to the accused. Unless the examination under section 313, Cr.P.C. is
done in a perverse way, there cannot be any prejudice to the accused.
(examination of the accused under 313 (b) should not be an empty formality)
In Nar Singh v. State of Haryana; AIR 2015 SC 310, the Supreme
Court laid down:- 1."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. In so far as non-compliance of mandatory
provisions of S. 313, it is an error essentially committed by the
Trial Court, the same has to be corrected or rectified in the
appeal.”
2.“The question whether a trial is vitiated or not depends upon the
degree of the error and the accused must show that noncompliance of S. 313 has materially prejudiced him or is likely to cause prejudice to him. Merely because of defective questioning
under S. 313 it cannot be inferred that any prejudice had been
caused 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…”
3.“…Hence, if all the relevant questions were not put to accused by
the trial court and when the accused has shown that prejudice was
caused to him, the appellate court is having power to remand the
case to examine the accused again under S. 313 and may direct remanding the case again for re-trial of the case from that stage of
recording of statement under S. 313 and the same cannot be said
to be amounting to filling up lacuna in the prosecution case.”
4."Accused in the instant case is prejudiced on account of
omission to put the question as to the opinion of Ballistic Expert
which was relied upon by the trial court as well as by the High
Court. Trial court should have been 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 under S. 313
cannot enure to the benefit of the accused. Therefore the matter is
remitted back to the trial court for proceeding with the matter
afresh from the stage of recording statement of the accused under
S. 313."
Bibhuti Bhusan Das Gupta v. State of W.B.; AIR 1969 SC 381
The Supreme Court has held that :-
"proposition that a Pleader authorised to appear on behalf of the accused
can do all acts which the accused himself can do, is too wide. When the
prosecution evidence is closed, the accused must be questioned for the
incriminating evidence against him and his pleader cannot be examined
in his place. "
State of Maharashtra Vs Sukhdeo Singh and Ors. Decided On: 15.07.1992
The question then is can a conviction be based on such an admission of guilt made in the written statement followed by the oral statement under section 313 of the Code?
Section 313 of the Code is intended to afford a person accused of a crime an opportunity to explain the circumstances appearing in evidence against him. Sub-section (1) of the section is in two parts: the first part empowers the court to put such questions to the accused as it considers necessary at any stage of the inquiry or trial whereas the second part imposes a duty and makes it imperative on the court to question him generally on the prosecution having completed the examination of its witnesses and before the accused is called on to enter upon his defence. 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 had committed.
Thus the answers given by the accused in response to his examination under Section. 313 can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, Sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. See State of Maharashtra v. R.B. Chowdhari MANU/SC/0085/1967 : 1968CriLJ95 . This Court in the case of Hate Singh v. State of Madhya Bharat MANU/SC/0073/1951 : 1953 Cri. L.J. 1933 held that an answer given by an accused under Section 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab MANU/SC/0137/1962 : [1963]3SCR678 this Court held that if the accused confesses to the commission of the offence with which he is charged the Court may, relying upon that confession, proceed to convict him. SECTION 309 - ADJOURNMENT Supreme Court of India
Swaran Singh vs State Of Punjab on 26 April, 2000
"It has become more or less a fashion to have a criminal case adjourned again and again till the witness tires and gives up. It is the game of unscrupulous lawyers to get adjournments for one excuse or the [pic]other till a witness is won over or is tired. Not only is a witness threatened, he is abducted, he is maimed, he is done away with, or even bribed. There is no protection for him. In adjourning the matter without any valid cause a court unwittingly becomes party to miscarriage of justice."
In State of U.P. versus Shambhu Nath Singh and Others (2001) 4 SCC 667 Supreme Court observed it was a pity that the sessions court adjourned the matter for a long interval after commencement of evidence, contrary to the mandate of Section 309 of the Cr.P.C. Once examination of witnesses begins, the same has to be continued from day-to-day unless evidence of the available witnesses is recorded, except when adjournment beyond the following day has to be granted for reasons recorded.
Supreme Court observed:
“12. Thus, the legal position is that once examination of witnesses started, the court has to continue the trial from day to day until all witnesses in attendance have been examined (except those whom the party has given up). The court has to record reasons for deviating from the said course. Even that is forbidden when witnesses are present in court, as the requirement then is that the court has to examine them. Only if there are “special reasons”, which reasons should find a place in the order for adjournment, that alone can confer jurisdiction on the court to adjourn the case without examination of witnesses who are present in court.
13. Now, we are distressed to note that it is almost a common practice and regular occurrence that trial courts flout the said command with impunity. Even when witnesses are present, cases are adjourned on far less serious reasons or even on flippant grounds. Adjournments are granted even in such situations on the mere asking for it. Quite often such adjournments are granted to suit the convenience of the advocate concerned. We make it clear that the legislature has frowned at granting adjournments on that ground. At any rate inconvenience of an advocate is not a “special reason” for bypassing the mandate of Section 309 of the Code.
If any court finds that the day-to-day examination of witnesses mandated by the legislature cannot be complied with due to the non-cooperation of the accused or his counsel the court can adopt any of the measures indicated in the sub-section i.e. remanding the accused to custody or imposing cost on the party who wants such adjournments (the cost must be commensurate with the loss suffered by the witnesses, including the expenses to attend the court). Another option is, when the accused is absent and the witness is present to be examined, the court can cancel his bail, if he is on bail (unless an application is made on his behalf seeking permission for his counsel to proceed to examine the witnesses present even in his absence provided the accused gives an undertaking in writing that he would not dispute his identity as the particular accused in the case). ( Position of law reiterated by Supreme Court of India in Doongar Singh vs The State Of Rajasthan on 28 November, 2017 ) In Abdul Rehman Antulay and others versus R.S. Nayak and another (1992) 1 S.C.C. 225 the Constitution Bench of this Court dealt with this aspect of the matter and laid down certain guidelines for speedy trial . These guidelines are :-
1) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily. Right to speedy trial is the right of the accused. The fact that a speedy trial is also in public interest or that it serves the social interest also does not make it any the less the right of the accused. It is in the interest of all concerned that the quilt or innocence of the accused is determined as quickly as possible in the circumstances.
2) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and re-trial. That is how, this Court has understood this right and there is no reason to take a restricted view.
3) The concerns underlying the right to speedy trial from the point of view of the accused are :-
(a) the period of remand and pre-conviction detention should be as short as possible. In other words, the accused should not be subjected to unnecessary or unduly long incarceration prior to his conviction;
(b) the worry, anxiety, expense and disturbance to his vocation and peace, resulting from an unduly prolonged investigation, inquiry or trial should be minimal; and
(c) undue delay may well result in impairment of the ability of the accused to defend himself, whether on account of death, disappearance or non-availability of witnesses or otherwise.
4) At the same time, one cannot ignore the fact that it is usually the accused who is interested in delaying the proceedings. As is often pointed out, "delay is a known defence tactic". Since the burden of proving the guilt of the accused lies upon the prosecution, delay ordinarily prejudices the prosecution. Non-availability of witnesses, disappearance of evidence by lapse of time really work against the interest of the prosecution. Of course, there may be cases where the prosecution, for whatever reason, also delays the proceedings. Therefore, in every case, where the right to speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay? Proceedings taken by either party in good faith to vindicate their rights and interest, as perceived by them, cannot be treated as delaying tactics nor can the time taken in pursuing such proceedings be counted towards delay. It goes without saying that frivolous proceedings or proceedings taken merely for delaying the day of reckoning cannot be treated as proceedings taken in good faith. The more fact that an application/petition is admitted and an order of stay granted by a superior court is by itself no proof that the proceeding is not frivolous. Very often these stays are obtained on ex-parte representation.
5) While determining whether undue delay has occurred (resulting in violation of Right to Speedy Trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the workload of the court concerned, prevailing local conditions and so on - what is called, the systemic delays. It is true that it is the obligation of the State to ensure a speedy trial and State includes judiciary as well, but a realistic and practical approach should be adopted in such matters instead of a pedantic one.
6) Each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. As has been observed by Powell, J. in Barker "it cannot be said how long a delay is too long in a system where justice is supposed to be swift but deliberate". The same idea has been stated by whitel, J. in U.S. V. Ewell in the following words:
... the Sixth Amendment right to a speedy trial is necessarily relative, is consistent with delays, and has orderly expedition, rather than more speed, as its essential ingredients; and whether delay in completing a prosecution amounts to an unconstitutional deprivation of rights depends upon all the circumstances'. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But when does the prosecution become persecution, again depends upon the facts of a given case.
7) We cannot recognize or give effect to, what is called the 'demand' rule. An accused cannot try himself; he is tried by the court at the behest of the prosecution. Hence, an accused's plea of denial of speedy trial cannot be defeated by saying that the accused did at no time demand a speedy trial. If in a given case, he did make such a demand and yet he was not tried speedily, it would be a plus point in his favour, but the mere non-asking for a speedy trial cannot be put against the accused. Even in USA, the relevance of demand rule has been substantially watered down in Barker and other succeeding cases.
8) Ultimately, the court has to balance and weigh the several relevant factors - balancing test or 'balancing process' - and determine in each case whether the right to speedy trial has been denied in a given cases.
9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order
- including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded - as may be deemed just and equitable in the circumstances of the case.
10) It is neither advisable nor practicable to fix any timelimit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on to the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer timelimit in spite of the Sixth Amendment. Nor do we think that not fixing any such outer limit ineffectuates the guarantee of right to speedy trial.
11) An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.
(Time limit fixed by Raj Deo v. State of Bihar judgment are not mandatory time limits as will be explained by constitutional bench judgment in P Ramachandra Rao v. State of karnataka)
Raj Deo Sharma vs The State Of Bihar on 8 October, 1998
After deep consideration of the matter, SC proceeded to supplement the propositions laid down by the Constitution bench in Antulay's case (supra) with the following directions:-
(i) In cases where the trial is for an offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of a period of two years from the date of recording the plea of the accused on the charges framed whether the prosecution has examined all the witnesses or not, within the said period and the court can proceed to the next step provided by law for the trial of the case. (This direction was held not be mandatory by reference to a larger bench direction no.4 of P ramachandra Rao case explains how to use this time limit)
(ii) In such cases as mentioned above, if the accused has been in jail for a period of not less than one half of the maximum period of punishment prescribed for the offence, the trial court shall release the accused on bail forthwith on such conditions as it deems fit.
(iii) If the offence under trial is punishable with imprisonment for a period exceeding 7 years, whether the accused is in jail or not, the court shall close the prosecution evidence on completion of three years from the date of recording the plea of the accused on the charge framed, whether the prosecution has examined all the witnesses or not within the said period and the court can proceed to the next step provided by law for the trial of the case, unless for very exceptional reasons to be recorded and in the interest of justice the court considers it necessary to grant further time to the prosecution to adduce evidence beyond the aforesaid time limit. (This direction of mandatorily closing the prosecution evidence was deleted by constitutional reference to a larger bench these time limits are to be used as per direction no. 4 in P Ramachandra Rao case)
(iv) But if the inability for completing the prosecution within the aforesaid period is attributable to the conduct of the accused in protracting the trial, no court is obliged to close the prosecution evidence within the aforesaid period in any of the cases covered by clauses
(v) Where the trial has been stayed by orders of court or by operation of law such time during which the stay was in force shall be excluded from the aforesaid period for closing prosecution evidence. P. Ramachandra Rao vs State Of Karnataka on 16 April, 2002 (Constitutional bench judgment clarifying above judgment) (1) The dictum in A.R. Antulay's case is correct and still holds the field.
(2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulay's case, adequately take care of right to speedy trial.
(3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made.
(4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made in Common Cause Case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decide whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused.
(5) The Criminal Courts should exercise their available powers, such as those under Sections 309, 311 and 258 of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions.
( in Common Cause Case-I and II and Raj Deo Sharma Case I and II regarding trial of cases. The directions made in those cases regarding enlargement of accused persons on bail are not subject matter of referencen this case i or these appeals and Supreme Court have consciously abstained from dealing with legality, propriety or otherwise of directions in regard to bail. This is because different considerations arise before the criminal courts while dealing with termination of a trial or proceedings and while dealing with right of accused to be enlarged on bail. In appropriate cases, the High Courts can exercise their jurisdiction under Section 482 of Cr.P.C. for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted.) Supreme Court of India
State Of Madhya Pradesh vs Badri Yadav & Anr on 31 March, 2006
In this case , the Sessions Trial was not conducted day by day. The prosecution witnesses were not produced by making them to remain present for day by day trial. The adjournments were sought by defence and they were also granted liberally. All this resulted in strange situation where those two witnesses stated something as prosecution witnesses and after lapse of sufficient time, they appeared before the court and gave the evidence as defence as witnesses and stated against the prosecution. Such witnesses were held liable for perjury . Even though they took the plea that they were forced by police to make such statements , yet the court found ingredients of the offence under 193 read with with 191 of IPC being satisfied and found them liable accordingly. REASONS FOR DELAY IN JUDICIAL SYSTEM and DELAY IN DISPOSAL OF CASES : - In A.R. Antulay's case, the Constitution Bench has noted that in spite of having proposed to go on with the trial of a case, five days a week and week after week, it may not be possible to conclude the trial for reasons, viz. (1) non-availability of the counsel, (2) non- availability of the accused, (3) interlocutory proceedings, and (4) other systemic delays. In addition, the Court noted that in certain cases there may be a large number of witnesses and in some offences, by their very nature, the evidence may be lengthy. In Kartar Singh Vs. State of Punjab (1994) 3 SCC 569 another Constitution Bench opined that the delay is dependent on the circumstances of each case because reasons for delay will vary, such as (i) delay in investigation on account of the widespread ramifications of crimes and its designed network either nationally or internationally, (ii) the deliberate absence of witness or witnesses, (iii) crowded dockets on the file of the court etc. In Raj Deo Sharma , in the dissenting opinion of M.B. Shah, J., the reasons for delay have been summarized as, (1) Dilatory proceedings; (2) Absence of effective steps towards radical simplification and streamlining of criminal procedure; (3) Multi-tier appeals/revision applications and diversion to disposal of interlocutory matters; (4) Heavy dockets; mounting arrears; delayed service of process; and (5) Judiciary, starved by executive by neglect of basic necessities and amenities, enabling smooth functioning.
Several cases coming to Court's notice while hearing appeals, petitions and miscellaneous petitions (such as for bail and quashing of proceedings) reveal, apart from inadequate judge strength, other factors contributing to the delay at the trial.
Generally speaking, these are: (i) absence of, or delay in appointment of, public prosecutors proportionate with the number of courts/cases; (ii) absence of or belated service of summons and warrants on the accused/witnesses;(iii) non-production of undertrial prisoners in the Court; (iv) presiding Judges proceeding on leave, though the cases are fixed for trial; (v) strikes by members of Bar; and (vi) counsel engaged by the accused suddenly declining to appear or seeking an adjournment for personal reasons or personal inconvenience. It is common knowledge that appointments of public prosecutors are politicized.
By convention, government advocates and public prosecutors were appointed by the executive on the recommendation of or in consultation with the head of judicial administration at the relevant level but gradually the executive has started bypassing the merit based recommendations of, or process of consultation with, District and Sessions Judges. For non- service of summons/orders and non-production of undertrial prisoners, the usual reasons assigned are shortage of police personnel and police people being busy in VIP duties or law and order duties. These can hardly be valid reasons for not making the requisite police personnel available for assisting the Courts in expediting the trial. The members of the Bar shall also have to realize and remind themselves of their professional obligation-legal and ethical, that having accepted a brief for an accused they have no justification to decline or avoid appearing at the trial when the case is taken up for hearing by the Court. All these factors demonstrate that the goal of speedy justice can be achieved by a combined and result-oriented collective thinking and action on the part of the Legislature, the Judiciary, the Executive and representative bodies of members of Bar.
233 Crpc
Radnanandan v. State of Kerala (1990 (1) KLT 516)
"Every accused is entitled to a fair trial which includes opportunity for adducing his own evidence also. That is his right if he is not acquitted under Section 232 on the ground that the Judge considers that there is no evidence that he committed the offence. In such a situation, it is mandatory that he should be called upon to enter on his defence and permitted to adduce oral and documentary evidence of his choice. On his application, the court has the duty to issue process and secure witnesses, documents or things. The choice in this respect is solely on him. Calling the accused to enter on his defence is not an empty formality. Its omission will be fatal to the prosecution and the conviction will be bad.
Subject to those restrictions, the accused is having the unfettered right to have any witness, document or thing summoned. Entering on defence and adducing evidence marks a special stage in and is an essential part of a criminal trial. If that chance is denied, it cannot be said to be fair trial. The restrictions on the grounds of vexation, delay or defeating the ends of justice are not available in this case."
311 Cr.PC In Rajendra Prasad vs. Narcotic Cell reported as (1999) 6 SCC 110, it was held as under:-
"It is a common experience in criminal Courts that defence counsel would raise objections whenever Courts exercise powers under Section 311 of the Code or under Section 165 of the Evidence Act, 1872 by saying that the Court could not "fill the lacuna in the prosecution case". A lacuna in the prosecution is not to be equated with the fallout of an oversight committed by a public prosecutor during trial, either in producting relevant materials or in eliciting relevant answers from witnesses. The adage 'to err is human' is the recognition of the possibility of making mistakes to which humans are prone. A corollary of any such laches or mistakes during the conducting of a case cannot be understood as the lacuna which a Court cannot fill up." Lacuna in the prosecution must be understood as the inherent weakness or a latent wedge in the matrix of the prosecution case. The advantage of it should normally go to the accused in the trial of the case, but an over sight in the management of the prosecution cannot be treated as irreparable lacuna. No party in a trial can be foreclosed from correcting errors. If proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified. After all, function of the criminal Court is administration of criminal justice and not to count errors committed by the parties or to find out and declare who among the parties performed better.
SC therefore did not accept the contention of the appellant as a legal proposition that the Court cannot exercise power of resummoning any witness if once that power was exercised, nor can the power be whittled down merely on the ground that prosecution discovered laches only when the defence highlighted them during final arguments. The power of the Court is plenary to summon or even recall any witness at any stage of the case if the Court considers it necessary for a just decision. The steps which the trial Court permitted in this case for re-summoning certain witnesses cannot therefore be spurned down or frowned at. In P. Sanjeeva Rao v. State of Andhra Pradesh reported as (2012) 7 SCC 56, it held :-
" Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of Supreme Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria. A timely reminder of that solemn duty was given in the following words: (SCC p. 384, para 35) "What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice." GUIDELINES FOR EXERCISE OF 311 Cr.PC Rajaram Prasad Yadav v. State of Bihar and another reported as (2013) 14 SCC 461, it was held as under:-
"17. From a conspectus consideration of the above decisions, while dealing with an application under Section 311 Cr.P.C. read along with Section 138 of the Evidence Act, we feel the following principles will have to be borne in mind by the Courts:
1. Whether the Court is right in thinking that the new evidence is needed by it? Whether the evidence sought to be led in under Section 311 is noted by the Court for a just decision of a case?
2. The exercise of the widest discretionary power under Section 311 Cr.P.C. should ensure that the judgment should not be rendered on inchoate, inconclusive and speculative presentation of facts, as thereby the ends of justice would be defeated.
3. If evidence of any witness appears to the Court to be essential to the just decision of the case, it is the power of the Court to summon and examine or recall and re-examine any such person.
4. The exercise of power under Section 311 Cr.P.C. should be resorted to only with the object of finding out the truth or obtaining proper proof for such facts, which will lead to a just and correct decision of the case.
5.The exercise of the said power cannot be dubbed as filling in a lacuna in a prosecution case, unless the facts and circumstances of the case make it apparent that the exercise of power by the Court would result in causing serious prejudice to the accused, resulting in miscarriage of justice.
6. The wide discretionary power should be exercised judiciously and not arbitrarily.
7. The Court must satisfy itself that it was in every respect essential to examine such a witness or to recall him for further examination in order to arrive at a just decision of the case.
8 .The object of Section 311 Cr.P.C. simultaneously imposes a duty on the Court to determine the truth and to render a just decision.
9. The Court arrives at the conclusion that additional evidence is necessary, not because it would be impossible to pronounce the judgment without it, but because there would be a failure of justice without such evidence being considered.
10. Exigency of the situation, fair play and good sense should be the safe guard, while exercising the discretion. The Court should bear in mind that no party in a trial can be foreclosed from correcting errors and that if proper evidence was not adduced or a relevant material was not brought on record due to any inadvertence, the Court should be magnanimous in permitting such mistakes to be rectified.
11. The Court should be conscious of the position that after all the trial is basically for the prisoners and the Court should afford an opportunity to them in the fairest manner possible. In that parity of reasoning, it would be safe to err in favour of the accused getting an opportunity rather than protecting the prosecution against possible prejudice at the cost of the accused. The Court should bear in mind that improper or capricious exercise of such a discretionary power, may lead to undesirable results.
12. The additional evidence must not be received as a disguise or to change the nature of the case against any of the party.
13. The power must be exercised keeping in mind that the evidence that is likely to be tendered, would be germane to the issue involved and also ensure that an opportunity of rebuttal is given to the other party.
14. The power under Section 311 Cr.P.C. must therefore, be invoked by the Court only in order to meet the ends of justice for strong and valid reasons and the same must be exercised with care, caution and circumspection. The Court should bear in mind that fair trial entails the interest of the accused, the victim and the society and, therefore, the grant of fair and proper opportunities to the persons concerned, must be ensured being a constitutional goal, as well as a human right."
Section 319 (Based on principle of judex damnatur cum nocens absolvitur - a judge is condemned when a guilty is acquitted) Supreme Court of India
Hardeep Singh vs State Of Punjab & Ors CRIMINAL APPEAL NO. 1750 OF 2008
(2014) 3 SCC 92
Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised? and Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?
A. In Dharam Pal's case, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation. Such cognizance can be taken under Section 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' under Section 319 Cr.P.C. becomes available for summoning an additional accused.
Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial. As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry. Inquiries under Sections 200, 201, 202 Cr.P.C.; and under Section 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C. Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power under Section 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet.In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial. Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?
A. Considering the fact that under Section 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event under Section 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination., Even on the basis of Examination- in-Chief, the Court or the Magistrate can proceed against a person as long as the court is satisfied that the evidence appearing against such person is such that it prima facie necessitates bringing such person to face trial. In fact, Examination-in-Chief untested by Cross Examination, undoubtedly in itself, is an evidence. what is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?
A. Though under Section 319(4)(b) Cr.P.C. the accused subsequently impleaded is to be treated as if he had been an accused when the Court initially took cognizance of the offence, the degree of satisfaction that will be required for summoning a person under Section 319 Cr.P.C. would be the same as for framing a charge. The difference in the degree of satisfaction for summoning the original accused and a subsequent accused is on account of the fact that the trial may have already commenced against the original accused and it is in the course of such trial that materials are disclosed against the newly summoned accused. Fresh summoning of an accused will result in delay of the trial - therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.
Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not chargesheeted or who have been discharged?
A. A person not named in the FIR or a person though named in the FIR but has not been charge-sheeted or a person who has been discharged can be summoned under Section 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial. However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh. (remember , there is a great difference with regard to a person who has been discharged. A person who has been discharged stands on a different footing than a person who was never subjected to investigation or if subjected to, but not charge-sheeted. Such a person has stood the stage of inquiry before the court and upon judicial examination of the material collected during investigation; the court had come to the conclusion that there is not even a prima facie case to proceed against such person. Generally, the stage of evidence in trial is merely proving the material collected during investigation and therefore, there is not much change as regards the material existing against the person so discharged. Therefore, there must exist compelling circumstances to exercise such power. The Court should keep in mind that the witness when giving evidence against the person so discharged, is not doing so merely to seek revenge or is naming him at the behest of someone or for such other extraneous considerations. The court has to be circumspect in treating such evidence and try to separate the chaff from the grain. If after such careful examination of the evidence, the court is of the opinion that there does exist evidence to proceed against the person so discharged, it may take steps but only in accordance with Section 398 Cr.P.C. without resorting to the provision of Section 319 Cr.P.C. directly.)
Scope of 319 Cr.PC - Power under Section 319 Cr.P.C. is a discretionary and an extra- ordinary power. It is to be exercised sparingly and only in those cases where the circumstances of the case so warrant. It is not to be exercised because the Magistrate or the Sessions Judge is of the opinion that some other person may also be guilty of committing that offence. Only where strong and cogent evidence occurs against a person from the evidence led before the court that such power should be exercised and not in a casual and cavalier manner. Supreme Court of India
Mani Pushpak Joshi vs The State Of Uttarakhand on 17 October, 2019 (referred and reiterated the point of Hardeep Singh v. State of Punjab supra) though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity. The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction. In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. In Section 319 Cr.P.C. the purpose of providing if ‘it appears from the evidence that any person not being the accused has committed any offence’ is clear from the words “for which such person could be tried together with the accused.” The words used are not ‘for which such person could be convicted’. There is, therefore, no scope for the Court acting under Section 319 Cr.P.C. to form any opinion as to the guilt of the accused. Periyasami v. S. Nallasamy,2019 SCC OnLine SC 379 Under Section 319 of the Code additional accused can be summoned only if there is more than prima facie case as is required at the time of framing of charge but which is less than the satisfaction required at the time of conclusion of the trial convicting the accused. 235 CrPC and 309 CrpC interplay The effect of non-compliance of Section 235(2) Cr.P.C. came up for consideration before the Apex Court in Malkiat Singh v. State of Punjab . A Bench consisting of three Judges of the Supreme Court indicated the need to adjourn the case to a future date after convicting the accused, It was held as follows:-
"On finding that accused committed the charged offences, Section 235(2) of the Code empowers the Judge that he shall pass sentence on him according to law on hearing him, Hearing contemplated is not confined merely to oral hearing but also Intended to afford an opportunity to the prosecution as well as the accused to place before the court facts and material relating to various factors on the question of sentence, and if interested by either side, to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty. Therefore, sufficient time must be given to the accused or the prosecution on the question of sentence, to show the grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be." In Allauddin Mian v. State of Bihar decided on 13.4.1989 a Bench consisting of two Judges considered the effect of non-compliance of Section 235 (2) Cr.P.C. It was held that the provision is mandatory, It was held as follows;-
In Gurudev Singh v. State of Punjab (2003) 7 SCC 258) the Apex Court had occasion to consider the principle laid down in Ram Deo Chauhan's case (supra).
It was held as follows:--
"It was held that the mandate of the legislature is clear that no adjournment can be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed upon him. Nevertheless, the court can in appropriate cases grant adjournment for the aforesaid purpose, if the proposed sentence is a sentence of death. From the material on record, it does not appear that any request was made to the learned Sessions Judge for adjournment. In the circumstances, we see no substance in the contention that the sentence imposed was vitiated for non-compliance with Section 235(2) of the Code of Criminal Procedure, 1973. In Motilal v. State of M.P. it was held as follows:--
In Ram Deo Chauhan v. State of Assam (AIR 1992 SC 2100) a Bench of three learned Judges had occasion to consider the question in the light of the amendment made by introducing the third proviso to Sub-section (2) of Section 309 Cr.P.C. and observed that the plea made as to the sentence and conviction being recorded on the same day resulting in contravention of Section 235(2) C.P.C. cannot be accepted and that though the normal rule be that after pronouncing the verdict of guilt the hearing should be made on the same day and sentence should also be pronounced on that day itself, in cases where the Judge feels or if the accused demands more time for hearing on the question of sentence especially when the Judge proposes to impose death penalty, the third proviso to Section 309 Cr.P.C. would be no bar for affording such time and if for any reason the court was inclined to adjourn the case after pronouncing the verdict of guilt in grave offences, the person convicted should be committed to jail till the verdict on the sentence is pronounced." Supreme Court of India
Santa Singh vs State Of Punjab on 17 August, 1976
whether noncompliance with s. 235(2)is merely an irregularity which can be cured by s. 465 or it is an illegality which vitiates the sentence. Having regard to the object and the setting in which the new provision ofs. 235(2)was inserted in the 1973 Code there can be no doubt that it is one of the most fundamental part of the criminal procedure and non-compliance thereof will ex facie vitiate the order. Even if it be regarded as an irregularity the prejudice caused to the accused would be inherent and implicit because of the infraction of the rules of natural justice which have been incorporated in this statutory provision, because the accused has been completely deprived of an opportunity to represent to the Court regarding the proposed sentence and which manifestly results in a serious failure of justice. The last point to be considered is the extent and import of the word "hear" used ins. 235(2)of the 1973 Code. Does it indicate, that the accused should enter into a fresh trial by producing oral and documentary evidence on the question of the sentence which naturally will result in further delay of the trial? The Parliament does not appear to have intended that the accused should adopt dilatory tactics under the cover of this new provision but contemplated that a short and simple opportunity has to be given to the accused to place materials if necessary by leading evidence before the Court bearing on the question of sentence and a consequent opportunity to the prosecution to rebut those materials.
In Muniappan v. State of Tamilnadu Chandrachud, C.J. expressed dissatisfaction at the fact that the learned Sessions Judge had not made "any serious effort to elicit from the accused what he wanted to say on the question of sentence". Here, as in most of the cases (in practice) all that the learned Judge says is that "when the accused was asked on the question, he did not say anything" Here the court observed : The obligation to hear the accused on the question of sentence which is imposed by S. 235 (2) of the Cr. P.C. is not discharged by putting a formal question to the accused as to what he has to say on the question of sentence. The Judge must make a genuine effort to elicit from the accused all information which will eventually bear on the question of sentence. All admissible evidence is before the judge but that evidence itself often furnishes a clue to the genesis of the crime and the motivation of the criminal. It is the bounden duty of the Judge to cast aside the formalities of the court-scene and approach the question of sentence from a broad sociological point of view. The occasion to apply the provisions of section 235 (2) arises only after the conviction is recorded. What then remains is the question of sentence in which not merely the accused but the whole society has a stake. Questions which the judge can put to the accused under Section 235 (2) and the answers which the accused makes to those questions are beyond the narrow constraints of the Evidence Act. The court while on the question of sentence, is in an altogether different domain in which facts and factors which operate are of an entirely different order than those which come into play on the question of conviction.
TIME LINE OF SECTION 235 (2) CASE LAWS:
The first case on this point is Santa Singh v. The State of Punjab, (1976) 4 SCC 190, which was decided by a Division Bench of Supreme Court presided by Justice Bhagwati and Justice Fazal Ali. This case revolved on the fact that an accused in a double murder case was sentenced to death without providing an opportunity of ‘hearing’ under Section 235 (2) of CrPC, which was the only ground of appeal before the Supreme Court. Court, by two concurrent opinions, remanded the matter back to the trial court for fresh consideration on sentencing after giving an opportunity of ‘hearing’ to the accused. Justice Bhagwati interpreted Section 235 (2) of CrPC in the following manner “This material may be placed before the court by means of affidavits, but if either party disputes the correctness or veracity of the material sought to be produced by the other, an opportunity would have to be given to the party concerned to lead evidence for the purpose of bringing such material on record. The hearing on the question of sentence, would be rendered devoid of all meaning and content and it would become an idle formality, if it were confined merely to hearing oral submissions without any opportunity being given to the parties and particularly to the accused, to produce material in regard to various factors bearing on the question of sentence, and if necessary, to lead evidence for the purpose of placing such material before the court. We are therefore of the view that the hearing contemplated by section 235 (2) is not confined merely to hearing oral submissions, but it is also intended to give an opportunity to the prosecution and the accused to place before the court facts and material relating to various factors bearing on the question of sentence and if they are contested by either side, then to produce evidence for the purpose of establishing the same. Of course, care would have to be taken by the court to see that this hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings.” (emphasis supplied) Justice Fazal Ali, agreed with the aforesaid conclusion, and made observations along the same lines.
Dagdu and others v. State of Maharashtra, (1977) 3 SCC 68, wherein a similar question came before the Court. The Court, while repelling the submission of the counsel for the accused therein, who argued that the ratio in Santa Singh Case (supra) mandated compulsory remand of the case to the trial court, held as under “But we are unable to read the judgment in Santa Singh (supra) as laying down that the failure on the part of the Court, which convicts an accused, to 'hear him on the question of sentence must necessarily entail a remand to that Court in order to afford to the accused an opportunity to. be heard on the question of sentence. The Court, on convicting an accused, must unquestionably hear him on the question of sentence. But if, for any reason, it omits to do so and the accused makes a grievance of it in the higher court, it would be open to that Court to remedy the breach by giving a hearing to the accused on the question of sentence. That opportunity has to be real and effective, which means that the accused must be permitted to adduce before the Court all the data which he desires to adduce on the question of sentence. The accused may exercise that right either by instructing his counsel to make oral submissions to the Court or he may, on affidavit or otherwise, place in writing before the Court whatever he desires to place before it on the question of sentence. The Court may, in appropriate cases, have to adjourn the matter in order to give to the accused sufficient time to produce the necessary data and to make his contentions on the question of sentence. That, perhaps, must inevitably happen where the conviction is recorded for the first time by a higher court. Bhagwati J. has observed in his judgment that care ought to be taken to ensure that the opportunity of a hearing on the question of sentence is not abused and turned into an instrument for unduly protracting the proceedings.”
In the case of Muniappan v. State of Tamil Nadu, (1981) 3 SCC 11, the Supreme Court noted that the trial court had sentenced the accused to death stating that when the accused was asked to speak on the question of sentence, he did not say anything. In such a case the Supreme Court noted that the requirement of Section 235(2)was not discharged by merely putting a formal question to the accused, and the court should undertake genuine efforts. The Court observed therein that, “it is the bounden duty of the judge to cast aside the formalities of the court scene and approach the question of sentence from a broad, sociological point of view”.
The question of providing sufficient time for Pre Sentence Hearing was dealt with by the Court in Allauddin Mian v. State of Bihar, (1989) 3 SCC 5. The Supreme Court observed that the trial court had not provided sufficient time to the accused for hearing on sentencing. Relevant factors, such as, the antecedents of the accused, their socioeconomic conditions, and the impact of their crime on the community had not come on record, and in the absence of such information deciding on punishment was difficult. The Supreme Court therefore recommended that, “as a general rule the trial courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender”. The aforesaid proposition was also reiterated in Malkiat Singh v. State of Punjab, (1991) 4 SCC 341. On the other hand, in Sevaka Perumal v. State of Tamil Nadu, AIR 1991 SC 1463, Supreme Court upheld the death sentence even though it was argued that no time had been given to raise grounds on sentencing by the trial court. The Court observed that, during the appeal, the defence counsel had been unable to provide any additional grounds on sentence and therefore no prejudice had been caused to the accused. In State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700, the Supreme Court clarified that while Section 309 of the CrPC prescribed no power for adjournment of sentencing hearings, these should be provided where the accused sought to produce materials in capital cases. In Jai Kumar v. State of Madhya Pradesh, AIR 1999 SC 1860, the Court observed that the trial court had given an opportunity to the defence to produce materials, which they chose not to do, and had considered the mitigating circumstances raised by them. The Court opined that, in such circumstances, it was not a miscarriage of justice that the judge did not adjourn the hearing. In Anshad v. State of Karnataka, (1994) 4 SCC 381, Court disapprovingly noted that the trial judge had dealt with sentencing cryptically in one paragraph and this defeated the very object of Section 235(2) of CrPC, exposing a “lack of sensitiveness on his part while dealing with the question of sentence”. Commuting the sentences of the appellants, the Supreme Court observed that both the lower courts did not appreciate the aggravating and mitigating circumstances and therefore their entire approach to sentencing was incorrect. B.A. Umesh v. Registrar General, High Court of Karnataka, (2017) 4 SCC 124, wherein it was held that a review petition cannot be allowed merely because no separate date was given for hearing on the sentence. Court held that Section 235(2) of CrPC does not mandate separate date for the hearing of the sentence, rather, it is dependent on the facts and circumstances of the case, for instance, if parties insist to be heard on separate dates. In the final order of Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1, Court held that in the event the procedural requirements under Section 235 (2) of the CrPC are not met, the appellate court can either remit the case back to the trial court or adjourn the matter before the appellate forum for hearing on sentence after giving an opportunity to adduce evidence. On the other hand, the court also noted that any deficiency in non compliance of Section 235 (2) of CrPC can be cured by providing the opportunity at the appellate stage itself so as to curtail the delay in the proceedings. In that case, Supreme Court had allowed the accused to file an affidavit listing the mitigating circumstance, noticing that no prehearing on sentence was ever carried out. in Rajendra Prahladrao Wasnik v. State of Maharashtra, (Review Petition (Crl.) Nos. 306307 of 2013), Court made a general observation that in cases where the death penalty may be awarded, the Trial Court should give an opportunity to the accused after conviction which is adequate for the production of relevant material on the question of the propriety of the death sentence. This is evidently at best directory in nature and cannot be taken to mean that a presentence hearing on a separate date is mandatory. in case the minimum sentence is proposed to be imposed upon the accused, the question of providing an opportunity under Section 235(2) would not arise. (See Tarlok Singh v. State of Punjab, (1977) 3 SCC 218; Ramdeo Chauhan v. State of Assam, (2001) 5 SCC 714).
There cannot be any doubt that at the stage of hearing on sentence, generally, the accused argues based on the mitigating circumstances in his favour for imposition of lesser sentence. On the other hand, the State/the complainant would argue based on the aggravating circumstances against the accused to support the contention relating to imposition of higher sentence. The object of Section 235 (2) of the Cr.P.C is to provide an opportunity for accused to adduce mitigating circumstances. This does not mean, however, that the Trial Court can fulfil the requirements of Section 235(2) of the Cr.P.C. only by adjourning the matter for one or two days to hear the parties on sentence. If the accused is ready to submit his arguments on this aspect on the very day of pronouncement of the judgment of conviction, it is open for the Trial Court to hear the parties on sentence on the same day after passing the judgment of conviction. In a given case, based on facts and circumstances, the Trial Court may choose to hear the parties on the next day or after two days as well.
Supreme Court of India
Ram Deo Chauhan @ Raj Nath vs State Of Assam on 10 May, 2001
The proviso may not entitle an accused to an adjournment but it does not prohibit or preclude the court from granting one in such serious cases of life and death to satisfy the requirement of justice as enshrined in Section 235(2) of the Code. Expeditious disposal of a criminal case is indeed the requirement of Article 21 of the Constitution; so also a fair opportunity to place all relevant material before the court is equally the requirement of the said Article. Therefore, if the court feels that the interest of justice demands that the matter should be adjourned to enable both sides to place the relevant material touching on the question of sentence before the court, the above extracted proviso cannot preclude the court from doing so.
despite the bar of third proviso to sub-section (2) of Section 309, the Court, in appropriate cases, can grant adjournment for enabling the accused persons to show cause against the sentence proposed on him particularly if such proposed sentence is sentence of death. We hold that in all cases where a conviction is recorded in cases triable by the Court of Sessions or by Special Courts, the court is enjoined upon to direct the accused convict to be immediately taken into custody, if he is on bail, and kept in jail till such time the question of sentence is decided. After the sentence is awarded, the convict is to undergo such sentence unless the operation of the sentence awarded is stayed or suspended by a competent court of jurisdiction. Such a course is necessitated under the present circumstances prevalent in the country and is in consonance with the spirit of law. A person granted bail has no right to insist to remain at liberty on the basis of the orders passed in his favour prior to his conviction.
as long as the spirit and purpose of Section 235(2) is met, inasmuch as the accused is afforded a real and effective opportunity to plead his case with respect to sentencing, whether simply by way of oral submissions or by also bringing pertinent material on record, there is no bar on the presentencing hearing taking place on the same day as the preconviction hearing. Depending on the facts and circumstances, a separate date may be required for hearing on sentence, but it is equally permissible to argue on the question of sentence on the same day if the parties wish to do so.
impact of non-compliance of procedure provided under Section 235 (2) of CrPC by the trial court. Even assuming that a procedural irregularity is committed by the trial court to a certain extent on the question of hearing on sentence, the violation can be remedied by the appellate Court by providing sufficient opportunity of being heard on sentence. It must be kept in mind that Section 465 of the CrPC mandates that no finding, sentence or order passed by the Court of competent jurisdiction shall be reversed or altered by the Court of appeal on account of any error, omission or irregularity in the order, judgment and other proceedings before or during trial unless such error, omission or irregularity results in a failure of justice. Such noncompliance can be remedied by the appellate Court by either remanding the matter in appropriate cases or by itself giving an effective opportunity to the accused.
(The narrative provided by numerous cases on this aspect portrays a picture of the appellate Court trying to balance two important rights, viz., right to fair trial and right to speedy trial. On one side, is the procedural right granted to the accused under Section 235 (2) of CrPC, and on the other side is the possibility of misuse to delay the trial. The experienced judges in India have enough expertise to distinguish, between the schemes for protracting trials from that of genuine causes in order to protect rights of the accused.)
Supreme Court of India
Accused X vs The State Of Maharashtra on 12 April, 2019 guidelines on pre-sentence hearing :- The term ‘hearing’ occurring under Section 235 (2) requires the accused and prosecution at their option, to be given a meaningful opportunity.
ii. Meaningful hearing under Section 235 (2) of CrPC, in the usual course, is not conditional upon time or number of days granted for the same. It is to be measured qualitatively and not quantitatively.
iii. The trial court need to comply with the mandate of Section 235 (2) of CrPC with best efforts.
iv. Noncompliance can be rectified at the appellate stage as well, by providing meaningful opportunity. v. If such an opportunity is not provided by the trial court, the appellate court needs to balance various considerations and either afford an opportunity before itself or remand back to trial court, in appropriate case, for fresh consideration.
vi. However, the accused need to satisfy the appellate courts, inter alia by pleading on the grounds as to existence of mitigating circumstances, for its further consideration. vii. Being aware of certain harsh realities such as long protracted delays or jail appeals through legal aid etc., wherein the appellate court, in appropriate cases, may take recourse of independent enquiries on relevant facts ordered by the court itself.
viii. If no such grounds are brought by the accused before the appellate courts, then it is not obligated to take recourse under Section 235 (2) of CrPC.
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