Daljinder Singh v. Mr.Baljinder Singh Sra, Addl.AG, Punjab

the case has been remanded back to the trial Court to proceed from the stage of recording statement under Section 313 Cr.P.C. and to decide the case afresh. Briefly the facts of the prosecution story are that petitioner along with the other co-accused were challaned in case FIR No.87 of 2006 under Sections 420,468 & 471 IPC registered at Police Station Rajasansi, district Amritsar, on the basis of complaint filed by Surinder Singh, Immigration Officer of International Airport Rajasansi, district Amritsar. As per allegations, the petitioner who was holding Indian Passport issued Crl.Revision No. 2118 of 2009 [2] from Jalandhar, approached the complainant for immigration clearance. It was found that Canadian VISA affixed at page No.25 of the passport was forged. On sustained questioning, the petitioner revealed that he procured this forged VISA through two persons, namely Monish and Bunty and disclosed their mobile numbers and both of them were residents of Amritsar. The petitioner disclosed that he promised to pay Rs.10.00 lacks to them after reaching Toronto (Canada). Report under Section 173 (2) Cr.P.C. was submitted against the petitioner and his co-accused Munish Kumar as accused and Harminder Singh alias Bunty was shown in column No.2 of the report as Proclaimed Offender. Charges were framed against the petitioner as well as against his co-accused Munish Kumar under Sections 468, 471 read with Section 120-B IPC . Complainant Surinder Singh, Immigration Officer, appeared as PW1, H.C.Karanpal Singh as PW-2 and ASI Gurvinder Singh as PW3 and statements of accused under Section 313 Cr.P.C.were recorded. The trial Court acquitted Munish Kumar, co-accused of the petitioner, for offence under Section 120-B and 468 IPC and convicted the petitioner under Section 471 IPC and sentenced to rigorous imprisonment for one year and fine of Rs.3000/- and in default of payment of fine to undergo further RI for one month. The petitioner preferred an appeal against judgment of conviction and order of sentence passed by the trial Court before the Court of Additional Sessions Judge, Amritsar, who vide his judgment dated

15.7.2009 set aside the judgment of the trial Court and remanded the case to the trial Court with the direction to proceed from the point where the Crl.Revision No. 2118 of 2009 [3] irregularity occurred i.e. from the stage of recording statement under Section 313 Cr.P.C. and to decide the case afresh. The present revision petition has been filed on the ground that the directions issued by the Additional Sessions Judge, Amritsar, are contrary to the settled tenets of the criminal jurisprudence. Learned counsel for the petitioner contends that once the lower Appellate Court has come to the conclusion that judgment of conviction as well as order of sentence are not legal, the same deserved to be set aside and there was no reason to remand the case back to the trial Court. Learned counsel for the petitioner relies on judgments of the Hon'ble Suprme Court in State of Punjab v. Hari Singh and others 2009 (2) R.C.R.(Crl.) 143, Ranvir Yadav v. State of Bihar 2009(3) RCR (Cri) 113, Lattu Mahto and another v. The State of Bihar (now Jharkhand) 2008(3) RCR(Cri.) 467 and of this Court in Om Parkash v. State of Punjab 2003 (3) R.C.R. (Cri.) 92, Makhan Singh v. State of Punjab 1992(2) R.C.R.(Cri.) 109 and Mahender Singh v. State of Haryana 1994 (1) R.C.R. (Cri.) 573 in support of his contention. Mr.Baljinder Singh Sra, Addl.AG, Punjab, submits that the Additional Sessions Judge, Amritsar has rightly remanded the case for recording the statement under Section 313 Cr.P.C. as the same was not recorded as per the prescribed procedure and the lower Appellate Court was within its right to remand the case back to the trial Court for appropriate decision after granting an opportunity to the petitioner. Moreover, no prejudice has been caused to the petitioner. I have heard the arguments of learned counsel for the parties Crl.Revision No. 2118 of 2009 [4] and have also gone through the judgments passed by the Courts below. The first Appellate Court while remanding the case back to the trial Court has observed as under: “Where the material facts were not put to the accused, it would amount to non-compliance with the mandatory provisions of law which is a serious illegality which cannot be undone by this Court. In view of the facts and circumstances of the case and as submitted the error or omission or irregularity appearing in the present case regarding non-compliance with the mandatory provisions of Section 313 Cr.P.C., in the opinion of the Court, has certainly prejudiced the rights of the accused-appellant which are sufficient to vitiate the trial. The oral testimony of the witnesses were not put to the accused in the summarize manner as required under the law. The evidence of the prosecution was not put to him in a proper prospective. The learned trial Court even omitted to put the evidence appearing in the examination of the witnesses of the prosecution and what they have deposed against the accused. In the pronouncement reported as Punjab Law Reporter, 1986(1), page 654 Brij Mohan Vs. State of Haryana of Hon'ble Punjab and Haryana High Crl.Revision No. 2118 of 2009 [5] Court, it was held that where the examination under Section 313 Cr.P.C. was defective, the lower appellate Court was within its rights to remand the case to the trial Court for proper decision after the accused was given opportunity to explain the incriminating circumstances appearing against him. It was also held that fresh examination of the accused will also give him a chance to explain all those circumstances. Thus, as a result of my discussion made here-in-above and relying upon the pronouncements as discussed here-in-above, the trial having been vitiated against the appellant to that extent because of non-compliance of mandatory provisions of Section 313 Cr.P.C., the judgment of conviction and sentence dated

9.8.2008 now under appeal passed by the learned trial Court, is set aside. Resultantly, the case is remanded back to the learned trial Court with the directions that the trial will proceed from the point where the irregularity occurred i.e., from the stage of recording the statement under Section 313 Cr.P.C. which the learned trial Court shall record in accordance with law and thereafter will provide reasonable opportunity to the accused to lead the Crl.Revision No. 2118 of 2009 [6] evidence in his defence and then shall proceed to decide the case afresh The appellant-accused has been directed to appear before the learned trial Court on 30.7.2009. The record of the learned trial Court along with copy of this judgment be returned forthwith. Appeal file be consigned.” The purpose of recording statement under Section 313 Cr.P.C. is to enable the accused personally to explain any circumstances appearing in the evidence against him. No matter how weak or scanty the prosecution evidence is in regard to certain incriminating material, it is the duty of the Court to examine the accused and seek his explanation thereon. The circumstances which are not put to him in his examination under Section 313 Cr.P.C. cannot be used against him and have to be completely excluded from circumstances. It is necessary for the Court to summarize the evidence of each witnesses and put the summary to the accused person in his examination. The salient points appearing in the evidence against the accused must be pointed out to him in a succinct form and he should be asked to explain them. The provisions of Section 313 Cr.P.C. are mandatory in nature which enjoins a court to question the accused generally on the incriminating evidence appearing against him in order to give him opportunity to explain the same. Where the accused is deprived of such an opportunity, this is a serious omission which goes to the root of the matter and cannot be said to be mere an irregularity. The duty cast upon the Court cannot be performed in perfunctory manner. Crl.Revision No. 2118 of 2009 [7] If the material facts were not put to the accused, it would amount to non-compliance with the mandatory provisions of law which is a serious illegality and as such non-compliance of the mandatory provisions of Section 313 Cr.P.C. certainly prejudice the rights of the accused which are sufficient to vitiate the trial. In the present case, the oral testimony of the witnesses were not put to the accused in the summarize manner as required under law. The accused was trying to travel to Toronto on a forged VISA. It was detected by the Immigration Authorities that the VISA at page No.25 of his passport was forged, although reports were called from the Passsport Office to find out authenticity of the VISA and Secretary of High Commission of Canada at Delhi also reported that the VISA was a forged document and the accused tried to cheat the Immigration Authorities by way of forged and fabricated VISA. The accused himself stated that the VISA was used by him to secure the immigration but the illegality and irregularity committed by the accused could not be proved as the Immigration authorities were not called as witnesses, although the Immigration Officer was a technical expert on the subject and it was part of his duty to check the genuineness of the VISA. All these incriminating materials were not put to the accused. and the concerned Immigration Officer who checked his documents was not cross-examined by the accused. The mandatory provisions for recording statement under Section 313 Cr.P.C. were vitiated by the trial Court. The first Appellate Court has also given a clear-cut finding that these mandatory provisions were vitiated but instead of setting aside the order of trial Court, he remanded the case for fresh trial from the stage of recording statement of Crl.Revision No. 2118 of 2009 [8] the accused under Section 313 Cr.P.C. in Makhan Singh's case (supra) it has been held “that the provisions of Section 313 Cr.P.C. enable the accused personally to explain any circumstance appearing in the evidence against him. The language employed is explicit in terms indicating that a Court is required to question generally on the case to enable the accused personally to explain any circumstance appearing in the evidence against him. This makes it imperative that nothing vague has to be left by the Court in the matter of questioning him on the case. Every material evidence for the prosecution has to be put to him for his personal explanation”. In Om Parkash's case (supra), it has been observed that “the next question now arises is as to whether the case should be remanded back to the trial Court as held by the lower Appellate Court or the proceedings should be dropped at this stage? I have considered all the materials on the record. As stated above, the mater relates to year 1993. I am of the considered view that in the interest of justice there should be end to the proceeding. The judgment of Yusuf alias Babu Khan v. State of Rajasthan (supra) squarely covers the case of the petitioner. My view is otherwise strengthened by another judgment of this Court render in Ram Nath v. The State of Haryana 2003(3) R.C.R. 137. In the said case, the appellant was convicted in a food adulteration matter and incriminating evidence was not put to him under Section 313 Cr.P.C. The Appellate Court had remanded the case back to the trial Court. As the petitioner in the said case had suffered the agony of long protracted trial, the order for fresh trial was set aside by this Court and the petitioner was consequently Crl.Revision No. 2118 of 2009 [9] acquitted. For the sake of repetition, I may say that in the present case also the petitioner is already facing the agony of protracted trial for the last many years and as such he deserves acquittal.” This view has been supported by the judgments of the the Hon'ble Supreme Court in S. Harnam Singh v. The State (Delhi Administration), AIR 1976 SC 2140 and Balwant Kaur v. Union Territory Chandigarh 1988 Supreme Court Cases (Criminal) 1. As a result of the above discussion and the law position, I am of the view that the learned Additional Sessions Judge, Amritsar after having setting aside the judgment of conviction and order of sentence assailed before him, should not have remanded the case back to the trial Court for re-examining the accused under Section 313 Cr.P.C. and to decide the case afresh The only course left to the lower Appellate Court was to acquit the accused instead of remanding the case back to the trial Court. The petitioner has already suffered the agony of long protracted trial and he deserves acquittal. Accordingly, the revision petition is allowed. The judgment of the first Appellate Court is set aside and the petitioner stands acquitted of the charge. February 22, 2010. raghav (DAYA CHAUDHARY) JUDGE