Akhil Das And Ors vs State Of Tripura

[1] The short point which arises for consideration in the present petition is as to whether the order of learned trial Judge, closing the petitioners‟ evidence by way of defence, after affording only two opportunities, has resulted into miscarriage of justice, also adversely prejudiced their right, resulting into travesty of justice or not?

[2] Facts necessary for adjudication of the petition read as under :

[3(a)] In relation to FIR No.12/2017 dated 7th April, 2017 accused, stand charged for having committed an offence punishable under Sections 498-A, 302 and 109 of Indian Penal Code (for short, „IPC‟). With the framing of the charge on 1st August, 2018, prosecution examined as many as 22(twenty two) witnesses. This was so done on different dates from 27th August, 2018 up to 21st February, 2019. On the following date i.e. on 16th March, 2019 accused were examined under Section 313 of the Code of Criminal Procedure (for short „Cr.P.C‟) when they also expressed their desire of leading evidence in defence. Resultantly, the court directed them to immediately furnish their list of witnesses.

[3(b)] On 27th March, 2019, accused prayed for an adjournment on the ground of engaging another counsel which request was acceded to. Yet on the next date i.e. 20th April, 2019, they again sought an adjournment which prayer was allowed "as a last chance" clarifying that "no further adjournment will be entertained in any circumstances." Accordingly, the matter was fixed for 31st May, 2019 for leading evidence. However, on the said date, they filed an application stating that the witnesses were unable to appear on account of illness and as such, prayed for further time. Not finding favour with such request, which was not acceded to, opportunity to lead evidence in defence was closed. It is this order dated 31st May, 2019 passed by learned Sessions Judge, Khowai, Tripura in Case No.ST(T-1) 06 of 2018 titled as The State of Trpura Vs. Akhil Das & Ors. which stands assailed in the present petition.

[4] Two facts stand un-rebutted both by Mr. Sovan Mahajan, appearing on behalf of the accused and Mr. Sumit Debnath, appearing on behalf of the State; (a) pursuant to orders dated 16th March, 2019 and 20th April, 2019 respectively, no list of witnesses was filed by the accused persons and (b) on 31st May, 2019 both the accused persons were present. Yet they were not examined by the trial court.

[5] In India, the procedure for conducting trial of a criminal offence is regulated by and in terms of the procedure prescribed under the provisions of the Code of Criminal Procedure, 1973 (hereinafter referred to as „the Act‟). Significantly, the Act consolidated several legislations dealing with subject. Factors weighing with the legislators in enacting the Act was the recommendations made by the Law Commission, inter alia the accused getting a fair trial in accordance with the accepted principles of natural justice; avoid delay in investigation & trial found harmful not only to individuals but also society; simplify the procedure so as to ensure fair deal to poor sections of the society.

[6] Chapter XVIII of the Act deals with the trial before a court of Sessions. By virtue of Section 233 contend therein, in the event of non-acquittal of the accused after the trial, the court is obliged to call upon him to enter on his defence and adduce any evidence which he may have in support thereof. In fact, by virtue of sub-Section (3) of the said Section, he has a right to apply for issuance of process; compel attendance of any witness; seek production of any document or a thing, which request unless considered vexatious in nature or made with an attempt of delaying or defeating the ends of justice, would ordinarily be allowed.

[7] Chapter XXIV of the Act deals with the general provisions as to enquires and trial. By virtue of Section 311 contained therein, the court in the inter-regnum has the power to summon material witnesses or examine any person who is present. Also by virtue of Section 313 contend therein, the court, in every inquiry or trial, is required to personally call upon the accused to explain the circumstances appearing in the evidence against him. Of course, such examination is not to be on oath by virtue of sub-section (2) of the said Section and by virtue of sub-section (3), the accused has the right to refuse to answer the same. Even if the accused were to remain silent and refuse to answer the same or give false answers it would not render him liable for punishment, though it may have a bearing on the outcome of the case.

[8] In Phula Singh v. State of Himachal Pradesh, (2014) 4 SCC 9 (2 Judge Bench) the Apex Court clarified that in his statement under Section 313 Cr.P.C the accused has a duty to furnish an explanation regarding any incriminating material produced against him during trial. The accused does have freedom to remain silent during investigation or/and before the court. Moreover, if he chooses to maintain silence or even remain in complete denial at the time of recording his statement the court would be entitled to draw such inference, including adverse inference, as may be permissible in accordance with law. [See : Ramnaresh & Ors. v. State of Chhattisgarh, AIR 2012 SC 1357; Munish Mubar v. State of Haryana, AIR 2013 SC 912; and Raj Kumar Singh alias Raju @ Batya v. State of Rajasthan, AIR 2013 SC 3150].

[9] In this regard, Section 315 of the Act is also important for it prescribes the accused of an offence, to be a competent witness for the defence, entitling him to give evidence on oath for disproving the charges made against him or any person charged together with him at the same trial. But then, this is voluntary in nature, with the accused making such request. In this context the Apex Court in State of Madhya Pradesh Vs. Ramesh & Anr., (2011) 4 SCC 786 (2 Judge Bench) observed that :

"28. The statement of the accused made under Section 313 CrPC can be taken into consideration to appreciate the truthfulness or otherwise of the prosecution case. However, as such a statement is not recorded after administration of oath and the accused cannot be cross-examined, his statement so recorded under Section 313 CrpC cannot be treated to be evidence within the meaning of Section 3 of the Evidence Act, 1872. Section 315 CrPC enables an accused to give evidence on his own behalf to disprove the charges made against him. However, for such a course, the accused has to offer in writing to give his evidence in defence. Thus, the accused becomes ready to enter into the witness box, to take oath and to be cross-examined and behalf of the prosecution and/or of the accomplice, if it is so required.[Vide Tukaram G. Gaokar v. R. N Shukla, AIR 1968 SC 1050 and Dehal Singh v. State of HP(2010) 9 SCC 85].

In such a fact situation, the accused being a competent witness, can depose in his defence and his evidence can be considered and relied upon while deciding the case." [emphasis supplied].

[10] In instant case, accused, by virtue of Section 315 Cr.P.C., to say the least, was obliged to furnish list of witnesses indicating himself to be one such person to be examined as a witness.

[11] Here only one may observe that unlike the provisions of the Code of Civil Procedure, 1908 (Order XVI Rule 1), there is no provision mandating the accused to furnish a list of witnesses. But then, it does not mean that the accused can have a right of an open ended trial. The court, with an endeavour of ensuring early completion of trial, in regulating the procedure, can direct the accused to disclose the number of witnesses and their particulars which are sought to be examined in defence.

[12] In the instant case, accused had only expressed their desire of leading evidence without specifying the number or the name. The court vide order dated 16th March, 2019 had recorded that "after examination of 313 of Cr.P.C the accused want to adduce defence witnesses". Record does not reflect as to whether the accused had themselves desired to be examined or not. But then, the fact of the matter being that on 31st May, 2019, both were present and the court could have questioned them about their desire of stepping into the witness box which was not so done. Instead, assuming that the accused did not want themselves to be examined, the Court proceeded to decide their application for adjournment on the ground of illness of one of their witnesses. At this stage, Mr. Mahajan, Advocate, who has also been appearing for the petitioners before the Court clarifies that his clients i.e. the accused, had expressed their desire to be examined.

[13] The Apex Court in Rajesh Talwar and Anr. Vs. Central Bureau of Investigation and Anr.,(2014) 1 SCC 628, (2 Judge Bench) has reiterated its earlier decision rendered in Selvi J. Jayalalita Vs. State of Karnataka, (2014) 2 SCC 401 by holding that fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails interests of the accused, the victim and of the society. It must be accorded to every accused in the spirit of the right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general.

[14] In all circumstances, courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the „majesty of the law‟ and the courts cannot turn a blind eye to vexatious or oppressive conduct that occurs in relation to criminal proceedings.

[15] However, denial of a fair trial is as much injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial judge, a fair prosecutor and an atmosphere of judicial calm. Since the object of the trial is to mete out justice and to convict the guilty and protect the innocent, the trial should be a search for the truth and not a bout over technicalities. It must be conducted under such rules as would protect the innocent and punish the guilty. Justice should not only be done but should seem to have been done. Therefore, free and fair trial is a sine qua non of Article 21 of the Constitution. Right to get a fair trial is not only a basic fundamental right but also a human right. Therefore, any hindrance in a fair trial could be violative of Article 14 of the Constitution. Article 12 of the Universal Declaration of Human Rights provides for the right to a fair trial which is what is enshrined in Article 21. Therefore, fair trial is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity and is governed by rule of law. Denial of fair trial is crucifixion of human rights.

[16] This Court, vide judgment dated 30th May, 2019 rendered in Case No.Criminal Petition No.3/2019 titled as The State of Tripura Vs. Panna Ahamed and Ors. has observed as under :

"Fair trial is the main object of criminal procedure and it is the duty of every court to ensure that such fairness is neither hampered nor threatened. It entails interest of the accused, the victim and the society, and as has been held by the Apex Court in Natasha Singh v. CBI, (2013) 5 SCC 741 (2 Judge Bench) it includes grant of fair and proper opportunities to all concerned, for fair trial is not only a constitutional but a human right.

[2] Free and fair trial is a sine qua non of Article 21 of the Constitution. Any hindrance or obstruction would be violative of Article 14. Denial of a fair trial is as much an injustice to the accused as is to the victim and the society. It necessarily requires a trial before an impartial Judge, a fair prosecutor and in an atmosphere of judicial calm. Since the object of trial is to mete out justice and convict the guilty and protect the innocent, trial should be a search for the truth and not about over technicalities and must be conducted under such rules as would protect the innocent and punish the guilty. Justice should not only be done but should be seemed to have been done to the innocent. This is what the Apex Court reiterated in State of Haryana v. Ram Mehar and Ors., (2016) 8 SCC 762(2 Judge Bench).

[3] Justice, Krishnaiyer, J in Maneka Sanjay Gandhi and Anr. v. Rani Jethmalani, (1979) 4 SCC 167 (2 Judge Bench) observed that assurance of a fair trial is the first imperative of dispensation of justice. Also referring to Ram Chander v. State of Haryana,(1981) 3 SCC 191 (2 Judge Bench) and Nellore v. Insha Ramana Reddy, 1972 Crl.L.J 1485 (2 Judge Bench) it was observed that "every criminal trial is a voyage of discovery in which truth is the quest, it is the duty of a presiding Judge to explore every avenue open to him in order to discover the truth and to advance the cause of justice."

[4] That assurance of fair trial is a necessary concomitant of rule of law stands reiterated by the Apex Court in Vinod Kumar v. State of Punjab, (2015) 3 SCC 220 (2 Judge Bench) which reads as follows :

"3. The narration of the sad chronology shocks the judicial conscience and gravitates the mind to pose a question, is it justified for any conscientious trial Judge to ignore the statutory command, not recognize "the felt necessities of time" and remain impervious to the cry of the collective asking for justice or give an indecent and uncalled for burial to the conception of trial, totally ostracizing the concept that a civilized and orderly society thrives on rule of law which includes "fair trial" for the accused as well as the prosecution."

[17] The Apex Court in Zahira Habibullah Sheikh and Anr. v. State of Gujarat & Anr., (2004) 4 SCC 158 (2 Judge Bench) held that the principles of rule of law and due process are closely linked with human rights protection. Such rights can be protected effectively when a citizen has recourse to the Courts of law. It has to be unmistakably understood that a trial which is primarily aimed at ascertaining the truth has to be fair to all concerned. There can be no analytical, all comprehensive or exhaustive definition of the concept of a fair trial, and it may have to be determined in a seemingly infinite variety of actual situations with the ultimate object in mind viz. whether something that was done or said either before or at the trial deprived the quality of fairness to a degree where a miscarriage of justice has resulted. It will not be correct to say that it is only the accused who must be fairly dealt with. That would be turning a Nelson's eye to the needs of the society at large and the victims or their family members and relatives. Each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as is to the victim and the society. Fair trial obviously would mean a trial before an impartial Judge, a fair prosecutor and atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or against the accused, the witnesses, or the cause which is being tried is eliminated. If the witnesses get threatened or are forced to give false evidence that also would not result in a fair trial. The failure to hear material witnesses is certainly denial of fair trial.

[18] Prior thereto, the Apex Court in Bhadran Vs. State of Kerala., (1993) Cr.L.J 1966 (2 Judge Bench) held that the accused must be informed of his right by the trial Judge and an effective and meaningful opportunity to adduce evidence in his defence must be extended to him, when necessary by giving reasonable adjournments. While acting under Section 233, the court must tell the accused that he has a right to enter on his defence, even if he is represented by counsel. Then, the court must also tell him that he can adduce evidence in support of his defence. If he needs time for that, he is entitled to have such time. Section 233 embodies a deep rooted principle, recognized in trials, namely that, no man shall be condemned, in his defence without hearing him.

[19] Also in T. N. Janardhanan Pillai Vs. State, (1992) Cr.L.J 436 (2 Judge Bench) the Apex Court held that right of the accused to adduce evidence of his choice is part of fair trial. Whether it be sessions trial, trial of a summons case, warrant case or summary trial, that right is there when it comes to the stage of adducing defence evidence. It is the right of the accused, at the appropriate time, to be called upon to enter his defence. So far as sessions trials are concerned, there is Section 233 and in trial of warrant cases, there is Section 243 of the Code of Criminal Procedure. It is true that there is slight difference between Sections 233 and 243. The words "for the purpose of examination or cross-examination" appearing in Section 243 are absent in Section 233. For that reason, the proviso to Section 243 is also absent in Section 233. That does not mean that in a sessions trial, at the stage of defence evidence, accused is not entitled to recall a prosecution witness, who was already examined either for the purpose of cross-examination or for being examined as a defence witness. The omission in Section 233 of the above words appearing in Section 243 is made good by Section 233(1) wherein the accused is given the right to adduce "any evidence he may have in support thereof". So also, Section 233(3) says that if the accused applies for the issue of process for compelling the attendance of any witness', the judge shall issue such process. The right is not a mere formality, but it is an essential part of a criminal trial. Every opportunity must be given to the accused to adduce evidence in his defence. It is for the accused and not for the judge to say what evidence or what amount of evidence he thinks of proper to place on record in his defence.

Right of the court to deny an opportunity for defence evidence is limited to cases where it is satisfied, for reasons to be recorded in writing that the application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Denial of the right of defence evidence is not an irregularity curable Under Section 465. Even in cases where an accused cross-examined or had the opportunity of cross-examining a prosecution witness, he could ask for examination or cross-examination of that witness at the stage of defence evidence. In such cases, apart from the question of vexation, delay or defeating the ends of justice, court can refuse examination if it is satisfied that it is not necessary for the ends of justice also. For other reasons, court has no discretion to refuse issue of process to compel the attendance of any witness cited by the accused. The discretion in refusing the chance will have to be exercised judicially for the advancement of justice and fair trial even if cases coming under Sub-section (3) of Section 233 as well as Sub-section (2) of Section 243 and the proviso. [Emphasis supplied.]

[20] In the instant case, as the record reveals, there has been no endeavour on the part of the accused to have the trial delayed, much less inordinately. Reason for adjournment stood explained. On one occasion the accused being a government servant was busy with the elections to the parliament. Also in the interregnum his father had expired which was on 19th March, 2019.

[21] It took almost a year for the prosecution to have examined their witnesses, whereas on the other hand, the accused, on both the occasions, bonafidely as the record reveals, requested for adjournment, which in the considered opinion of this Court, stood rejected without any justifiable cause.

[22] If the witnesses were not present, the court ought to have proceeded to examine the accused. This alone would have exhibited their bonafides in seeking an adjournment on the ground of non-availability of witnesses. If only they had refused to be examined on that day, the court could have conclusively formed an opinion with regard to their intent procrastinating the trial. It is in this backdrop, the Court finds, foreclosure of a valuable right of the accused of leading evidence, to have caused serious prejudice to them, resulting into miscarriage of justice.

[23] At this stage, Mr. Mahajan clarifies that the accused intend to examine only four witnesses i.e. themselves and two other independent witnesses, who shall be produced by them at their own costs and responsibility without any aid of the court. Further, accused undertake not to take any adjournment and have all the witnesses examined at the earliest, on any date(s) fixed by the trial court.

[24] As such impugned order dated 31st May, 2019 passed in Case No.ST(T-1) 06 of 2018 titled as The State of Trpura Vs. Akhil Das & Ors. is quashed and set aside to the extent that it dismisses the petitioners‟ application for adjournment and closes the right of defence to adduce evidence, with a further direction to the accused to appear before the trial court on 6th September, 2019 when an earliest date shall be fixed for examination of all the accused persons, as per court‟s calendar and convenience.

[25] It is made clear that any observation made herein, shall not be construed to be an expression/opinion on the merits of the case, for each case has to be dealt with, on its own merits and the trial court shall decide the matter uninfluenced of the same.

Pending application(s), if any, also stands disposed of. Record be sent back immediately.