Revisionist s v. St at e of Ut t arakhand

: Mr. Vij ay Khanduri, Brief Holder. H o n ’ b l e A sh i sh N a i t h a n i ,J. The present criminal revision under Sections 397/401 Cr.P.C. has been preferred by the Revisionists challenging the judgment dated 01.06.2024 passed by the learned Sessions Judge, Champawat in Criminal Appeal No. 19 of 2023, “Shunzhen Weng and Others vs. State of Uttarakhand” affirming the judgment dated 07.03.2023 passed by the learned Chief Judicial Magistrate, Champawat in Criminal Case No. 802 of 2019, “State vs. Jinchong Liao and Others ” whereby the Revisionists were convicted under Sections 120B, 419, 471 read with Section 465 IPC, Section 12(1)(c) read with Section 3 of the Passports Act, 1967 and Section 14(c) of the Foreigners Act, 1946 and sentenced accordingly.

3. Heard learned counsel for the parties and perused the record. Learned counsel for the Revisionists submits that the Revisionists have been in judicial custody for the last four years and have already undergone all the sentences awarded to them except the sentence imposed under Section 14(c) of the Foreigners Act, 1946. Criminal Revision No. 540 of 2024, “Jinchong Liao and Three Others vs.State of Uttarakhand”. 1 Ashish Naithani J. 2

4. The facts, in brief, are that the Revisionists, all foreign nationals, were apprehended near Banbasa, District Champawat on 27.07.2019 during a border checking exercise. The prosecution alleged that the Revisionists had entered India without valid documentation, had stayed without lawful authority and had attempted to leave the country by posing as Indian nationals. It was alleged that the identity documents recovered from them were forged and that they did not possess valid passports or visas.

5. After registration of FIR No. 42 of 2019 and upon completion of investigation, the charge sheet was submitted under Sections 120B, 420, 467, 468, 471 IPC, Section 12(1)(c) of the Passports Act and Section 14(c) of the Foreigners Act. The learned Chief Judicial Magistrate acquitted the Revisionists of the charges under Sections 420, 467 and 468 IPC but convicted them under the remaining Sections. The appeal carried by them was dismissed by the learned Sessions Judge.

6. Learned counsel for the Revisionists submits that the entire trial stands vitiated on account of a fundamental procedural irregularity that strikes at the root of the right to fair trial under Article 21 of the Constitution. It is submitted that the Revisionists are Chinese nationals who do not understand Hindi or English. On

15.01.2020, the Trial Court had itself recorded that the Revisionists understood only Chinese and directed that an interpreter be made available for framing of charge. Despite this judicial recognition, the charge was framed on 28.06.2022 without the presence or assistance of any interpreter. It is, therefore, argued that the Revisionists were never made to understand the nature of accusation against them and the framing of charge is rendered legally ineffective. Criminal Revision No. 540 of 2024, “Jinchong Liao and Three Others vs.State of Uttarakhand”. 2 Ashish Naithani J. 3

7. It is further submitted that although an interpreter was arranged at the stage of examination under Section 313 CrPC, the earlier omission is not cured, since the failure to explain the charge in a language understood by the accused is a substantive defect that invalidates the trial from its inception. Counsel submits that such violation is not a mere irregularity but a material illegality that prejudices the defence irreversibly.

8. Learned counsel for the State submits that the prosecution below has established the offences beyond reasonable doubt and both the courts below have recorded concurrent findings of fact. It is submitted that the conviction does not warrant interference in exercise of revisional jurisdiction.

10. Heard learned counsel for the parties and perused the record. The order sheet of the Trial Court dated 15.01.2020 records that the Revisionists understand only the Chinese language and, therefore, an interpreter was required for the purpose of explaining the charge. This judicial determination regarding language disability of the accused was never varied or recalled. Notwithstanding this, the charge was framed on 28.06.2022 without securing the presence of any interpreter and without recording that the charge had been explained in a language understood by the revisionists. As per the law of the land and the constitutional mandate, every person has a right of being heard, and as mentioned above, it is evident that a fair chance to explain themselves was not accorded to the Revisionists. Hence, the charge so framed cannot be sustained with the statement that the charges were framed after having been explained to the Revisionists and after obtaining their reply thereto. Criminal Revision No. 540 of 2024, “Jinchong Liao and Three Others vs.State of Uttarakhand”. 3 Ashish Naithani J. 4

11. Section 281 of the Code of Criminal Procedure mandates that when an accused does not understand the language of the court, the substance of the accusation must be interpreted to him in a language he understands. The obligation is mandatory and goes to the essence of a fair trial. The framing of charge is not an empty formality. It constitutes the foundational intimation to the accused of the precise accusation he must meet. If the accused is incapable of understanding the charge, the entire trial becomes a meaningless ritual.

12. The record further reveals that the assistance of an interpreter was indeed taken later for the purpose of recording the statements under Section 313 of the Code. This strengthens the conclusion that the Revisionists could not have understood the charge in the absence of an interpreter. The fact that interpreter assistance was provided at a subsequent stage cannot retrospectively validate the defective framing of charge.

13. The right of an accused to be informed, in a language he understands, of the nature and particulars of the accusation is inherent in the guarantee of a fair trial under Article 21 of the Constitution of India. It is an indispensable component of natural justice. A trial held in disregard of this requirement suffers from a fundamental infirmity that vitiates the proceedings in their entirety.

14. In the present case, the omission to secure interpreter assistance at the stage of framing of charge is not curable. It has occasioned serious prejudice to the Revisionists, who were unable to comprehend the accusation, unable to instruct counsel effectively and unable to defend themselves meaningfully. The trial conducted thereafter, being premised on an invalid charge, cannot be sustained. Criminal Revision No. 540 of 2024, “Jinchong Liao and Three Others vs.State of Uttarakhand”. 4 Ashish Naithani J. 5

15. In revisional jurisdiction, the Court ordinarily does not re-appreciate evidence or disturb concurrent findings of fact, but where the trial itself stands vitiated by a jurisdictional error or a violation of mandatory procedure affecting the validity of the proceeding, interference is not only permissible but necessary to prevent miscarriage of justice.

16. Learned Counsel for the Revisionists has relied upon a judgment of a Coordinate Bench dated 31.07.2024 in Criminal Revision No. 286 of 2023, “Kareem Kone v. State of Uttarakhand and Another”. However, the facts and circumstances of the said citation are altogether different from the present case.

17. For the reasons aforesaid, this Court is of the considered view that the conviction and sentence recorded by the learned Chief Judicial Magistrate, Champawat and affirmed by the learned Sessions Judge, Champawat cannot be allowed to stand. ORDER The Criminal Revision is allowed. The impugned judgment and order dated 01.06.2024 passed by the learned Sessions Judge, Champawat in Criminal Appeal No. 19 of 2023, “Shunzhen Weng and Others vs. State of Uttarakhand” as well as the impugned judgment and order dated 07.03.2023 passed by the learned Chief Judicial Magistrate, Champawat in Criminal Case No. 802 of 2019 are hereby set aside. The matter is remanded to the court of the learned Chief Judicial Magistrate, Champawat for a fresh trial from the stage of framing of charge, in strict Criminal Revision No. 540 of 2024, “Jinchong Liao and Three Others vs.State of Uttarakhand”. 5 Ashish Naithani J. 6 compliance with law. The Trial Court shall ensure that an interpreter proficient in the Chinese language is appointed and that every stage of the proceedings is properly explained to the Revisionists. Let the record be sent back forthwith. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ A SH I SH N A I TH A N I , J. Dat ed 14.11.2025 Shik sha/ SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24b5aa08b09c12f21822fbd 40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D7FF0A9BED00E67B5283 D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA Criminal Revision No. 540 of 2024, “Jinchong Liao and Three Others vs.State of Uttarakhand”. 6 Ashish Naithani J.