Dakshinamoorthy and Others vs Union of Territory of Pondicherry

C. Nagappan, J.—The petitioners are accused in S.C. No. 3 of 1999 on the file of Additional Sessions Judge-cum-Chief Judicial Magistrate, Pondicherry and they seek for setting aside the order passed in Cri. M.P. No. 368 of 2001 in S.C. No. 3 of 1999, dated 10-12-2001 on his file.

Briefly, the facts stated in the petition are as follows. The petitioners are charged for the offences under Sections 148, 341, 447, 448, 427, 307 and 302 read with Section 149 of Criminal Penal Code in S.C. No. 3 of 1999 on the file of Additional Sessions Judge-cum-Chief Judicial Magistrate, Pondhichery. The respondent had examined 40 witnesses and the evidence was closed and the case was posted for further proceeding u/s 313 of Criminal Procedure Code on 20-11 -2001. The questions were not ready on that day and the petitioners, on the same day, filed a memo in Cri. M.P. No. 368 of 2001 praying for furnishing with all the circumstances that appear in the evidence against them in order to enable them to give their explanation upon legal consultation and advice of their counsel on the next hearing date. The petitioners contended that they have fundamental right of legal advice and assistance as per Article 22(1) of the Constitution of India and that right begins to flow from the moment a person is arrested and it would continue till the pronouncement of the judgment and at the time of questioning u/s 313of Cr.P.C., the right of legal advice of consultation will not be suspended temporarily and thereafter be revived. The questionnaire, containing the circumstances that appear to be against them, should be furnished to them in advance to make an effective explanation as to how those circumstances cannot be against them. Section 313 of Cr.P.C. does not contemplated that an accused should offer his explanation on the day fixed for it and that he is not entitled to any reasonable opportunity for reflection of mind and in such circumstances, the petitioners cannot be compelled to answer immediately and they have to be given a reasonable opportunity for their reflection of mind in consultancy and advice of their counsel.

The trial Court has dismissed the petition filed by the petitioners on the ground that there is no provision in Criminal Procedure Code that copies should be furnished to the accused and the proceedings u/s 313, Cr.P.C. is a matter entirely between the accused and the Court. The trial Court failed to note the contentions raised by the petitioners and the order deserves to be set aside.

The point for determination is whether the order of the trial Court deserves to be set aside for the contentions raised by the petitioners.

The petitioners are charged for the offence under Sections 148, 341, 447, 448, 427, 307 and 302 read with Section 149 of I.P.C. and the prosecution closed its side after examining 40 witnesses and when the case was posted for further proceedings u/s 313 of Cr.P.C, the petitioners filed a Memo praying for furnishing with all the circumstances that appear in the evidence against them in order to enable them to give their explanation upon legal consultation and advice of their counsel on the next hearing date. The trial Court, by a reasoned order, dismissed the petition, the correctness of which is being questioned in this petition.

Mr. Repert J. Barnabas, learned counsel for the petitioniers, has mainly raised the following grounds.

(i) During the proceedings u/s 313 of Cr.P.C, whether the accused is entitled to secure consultancy and advice from his counsel as to what type of answer he should give personally. If it is not, will it not be violative of his fundamental right as contemplated under Articles 21 and 22(1) of the Constitution of India. (ii) Whether in accused is entitled to be furnished with the questionnaire u/s 313 of Cr.P.C. in advance for reflection of mind, time and reasonable opportunity to understand it and to make an effective personal explanation to the trial Court. If not, will it not be violative of Articles 14 19(1)(a) and 21 of the Constitution of India.

(iii) When there is no specific bar in Section 313 of Cr.P.C, (1) that an accused cannot secure consultancy and advice from his counsel; (2) that he should not be furnished with copy of the questionnaire and (3) that he is not entitled for reflection of mind, time and opportunity and if he is denied of such rights, will it not be violative of the fundamental rights of an accused as contemplated under Articles 14 19(1)(a) , 21 and 22(1) of the Constitution of India and the principles of natural justice.

It is the contention of the learned counsel for the petitioners that the fundamental right of the accused to consult and secure advice of his counsel, as contemplated under Article 22(1) of the Constitution of India, continues till the termination of the trial and it cannot be interrupted or suspended at the time of proceedings u/s 313 of Cr.P.C. and Section 313 does not place a bar on the accused from securing legal advice and consultancy at that stage and the accused is entitled to be furnished in writing all those circumstances appearing in the evidence against him and he is entitled for sufficient time for reflection of mind and also for securing legal advice and consultancy in answering the questions.

The learned counsel further submitted that there is no bar for securing legal advice u/s 313 of Cr.P.C as provided under Prevention Detention Laws and the accused being an illiterate person, not knowing as to what type of explanation he has to give when questioned u/s 313, Cr.P.C, it works to great prejudice and disadvantage, particularly when Section 313(4) of Cr.P.C. contemplates that the answer given by an accused either u/s 313(1)(a) of (b) can be taken into consideration against him for any other offence when such answers may tend to show he has committed and to relieve him of such hardship, the Court has to supply the questionnaire in advance.

It is further contended that the accused, after being supplied with the copies of police report and other documents u/s 207, Cr.P.C., is given enough time to answer the charge against him and likewise, the accused is given enough time for reflection of mind in proceedings under Sections 164 and 306, Cr.P.C. and in the same way, the accused is entitled for time for reflection of mind for answering the questions u/s 313, Cr.P.C. and the word "personally to explain" in Section 313(1) has to be interpreted as personal explanation after securing legal consultancy and advice. The decisions and the propositions therein relied on by the learned counsel for the petitioners in support of his contentions are as follows.

(i) Mrs. Maneka Gandhi Vs. Union of India (UOI) and Another,

57...Now, it is true that there is no express provision in the Passport Act, 1867 which requires that the audi alteram partem rule should be followed before impounding a passport, but that is not conclusive of the question, if the statute makes itself clear on this point, then no more question arises. But, even when the statute is silent, the law may in a given case make an implication and apply the principle stated by Byles, J., in Cooper v. Wandsworth Board of Works (1863) 14 CBNS 180 : "A long course of decisions, beginning with Dr. Bentley''s case (1723) 1 STR 557 and ending with some very recent cases, establish that although there are no positive words in the statute requiring that the party shall be heard, yet the justice of the common law will supply the omission of the legislature". The principle of audi alteram partem which mandates that no one shall be condemned unheard, is part of the rules of natural justice.

(ii) Sunil Batra Vs. Delhi Administration and Others etc., .

Head Note : G. New legislation is the best solution, but when lawmakers take for too long for social patience to suffer, Courts have to make-do with interpretation and carve on wood and sculpt on stone ready at hand and not wait for far away marble architecture.

(iii) P. Murugan v. Ethirajammal (973 Cri LJ 1256 (Mad).

Head Note : The purpose of examining the accused u/s 342 is to enable him to explain any circumstances that may be appearing in the evidence agiainst him. The Court cannot use the power under, the Section for eliciting an admission a lacuna in the prosecution evidence or for the purpose of traping or beguiling the accused into an admission of an essential fact which the prosecution failed to establish.

(iv) Ajmer Singh Vs. The State of Punjab, .

Head Note (b). It is not sufficient compliance with the section to generally ask the accused that having heard the prosecution evidence what he has to say about it. He must be questioned separately about each material circumstances which is intended to be used against him. The questions must be fair and must be couched in a from which an ignornant or illiterate person will be able to appreciate and understand.

(v) Sidheswar Ganguly Vs. The State of West Bengal, .

Head Note (d). There is no provision in the Code of Criminal Procedure for a written statement of the accused bring filed at the Sessions stage. But the accused the right to make a statement u/s 342 which has to be considered by the Court for what it is worth. But if such a written statement is allowed to be used at a Sessions trial by a jury, it may throw the door open to irrelevant and inadmissible matter and thus, throw an additional burden on the presiding Judge to extricate matter which was admissible from a mass of inadmissible statements which may have been introduced in the written statement.

(vi) Ram Shankar Singh and Others Vs. State of West Bengal, .

Head Note (c). In an examination of the accused u/s 342, the Sessions Judge in rolling up several distinct matters of evidence in a single question acts irregularly. Examination of the accused u/s 342 is not intended to be an idle formality, it has to be carried out in the interset of justice and fairplay to the accused; by a slipshod examination which is the result of imperfect appreciation of the evidence, idleness or negligence the position of the accused cannot be permitted to be made more difficult than what it is in a trial for an offence.

(vii) Tara Singh Vs. The State,

Head Note (d). When the Sessions Court is required to make the examination u/s 342, the evidence referred to is the evidence in the Sessions Court and the circumstances whcih appear against the accused in that Court. It is not therefore enough to read over the questions and answers put in the Committing Magistrate''s Court and ask the accused whether he has anything to say about them.

Head Note (e).... The whole object of the Section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him. The questioning must therefore be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. He is therefore in no fit position to understand the significance of a complex question. Fairness therefore requires that each material circumstances should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand.

(viii) State of Maharashtra Vs. Sukhdeo Singh and another Vs. State of Maharashtra Through C.B.I. Vs. Sukhdev Singh alias Sukha and others, .

The Court must act with caution and circumspection before accepting and acting on the plea of guilt. Once these requirements are satisfised the law permits the Judge trying the case to record a conviction based on the plea of guilt. If, however, the accused does not plead guilty of the learned Judge does not act on his plea he must fix a date for the examination of the witnesses, i.e.,the trial of the case.

Per contra, Mr. T. Murugesan, learned Public Prosecutor (Pondicherry), contended that as per the scheme of Criminal Procedure Code, the counsel has no role to play in the proceedings u/s 313, Cr.P.C. and the examination is to give an opportunity to the accused to explain the circumstances appear against him in the evidence and in case the answers are given as per the advice of the counsel, the Court will be deprived of the opportunity to know the real explanation of the accused and it will defeat the very purpose for which the personal examination u/s 313 is intended. The learned Public Prosecutor further contended that the prosecution witnesses are examined in the presence of the accused and the witnesses are also crossexamined by the accused and a copy of the depositions are given to the accused and after completion of evidence, there is enough time before the commencement of the proceedings u/s 313, Cr.P.C, enabling the accused to secure legal advice and consultancy from his advocate on the circumstances appearing in the evidence against him and the questions are put only on the evidence available on record and hence it cannot be said that the accused will be handicapped in case the questions are not furnished in advance.

Section 313 of Criminal Procedure Code 1973 corresponds to Section 342 of old Code. Elaborating the scope of Section 342 of old Code, the Apex Court in Bibhuti Bhusan Das Gupta and Another Vs. State of West Bengal, , held as follows :

...Sub-section (1) of Section 342 consists of two parts. The first part gives a discretion to the Court to question the accused at any stage of an inquiry or trial without previously warning him. Under the second part the Court is required to question him generally on the case after the witnesses for the prosecution have been examined and before he is called for his defence. The second part is mandatory and imposes upon the Court a duty to examine the accused at the close of the prosecution case in order to give him an opportunity to explain any circumstances appearing against him in the evidence and to say in his defence what he wants to say in his own words....

The privilege of making a statement u/s 342 is personal to the accused. The clear intention of the Section is that only he had nobody else can be examined under it. This conclusion is reinforced if we look at Section 364. The whole of his examination including every question put to him and every answer given by him must be recorded in full and interpreted to him in a language which he understandings and he is at liberty to explain or add to his answers; and when the whole is made conformable to what he declares is the truth, the record has to be signed by him and the Magistrate. The idea that the pleader can be examined on his behalf is foreign to the language of Sections 342 and 364. It was well observed by Bankin, J. in Promotha Nath Mukhopadhya Vs. Emperor, :

...the intention of the statute is that at a certain stage in the case the Court itself shall put aside all Counsel, all pleaders, all witnesses, all representatives and shall call upon an individual accused with the authority of the Court''s own voice, to take advantage of the opportunity which then arises to state in his own way anything which he may be desirous of stating...what is necessary is that the accused- shall be brought face to face solemnly with an opportunity given to him to make a statement from his place in the dock in order that the Court may have the advantage of hearing his defence if he is willing to make one with his own lips.

The proposition that a pleader authorised to appear on behalf of the accused can do all acts which the accused himself can do at the trial is too wide. If the statute gives the accused a personal privilege or imposes upon him a personal duty, only he can exercise the privilege or perform the duty....

On the basis of the recommendation of Law Commission, followed up by Parliament, Section 313 of Cr.P.C, as is presently worded, came into being and the Section casts a duty upon the Court to question the accused after the witnesses of the prosecution have been examined and before he is called upon for his defence. Exception is however made in summons case where the personal appearance of the accused has been dispensed with by the Court, The object of examination of an accused u/s 313 of the Code is stated by the Apex Court in the decision in Basavaraj R. Patil and Others Vs. State of Karnataka and Others, and it is extracted below.

What is the object of examination of an accused u/s 313 of the Code? The Section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him"....

Thus it is well settled that the provision is mainly intended to benefit the accused and as its corrollary to benefit the Court in reaching the final conclusion.

At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshirned in the maxim audi alteram partem.

In fact, in the earlier decision in Usha K. Pillai Vs. Raj K. Srinivas and others, , a two Judge Bench of the Apex Court has held that the purpose of Section 313 is to give the accused an opportunity to explain the circumstances appearing against him in evidence tendered by the prosecution so that the said explanation can be weighed vis-a-vis the prosecution evidence before the Court reaches its conclusion in that behalf. Thus, the Section is based upon the maxim audi alteram partem which has been acknowledged as the cardinal parinciple of natural justice.

Examination of the accused under the Section is not intended to be an idle formality and it has to be carried out in the interest of justice and fairplay to the accused. The accused must be questioned separately about each material circumstances which is intended to be used against him and the questions put to him must be fair and to be couched in a form which even an ignorant or illiterate person may be able to appreciate and understand. The privilege of making a statement under the section is personal to the accused and the Court itself shall put aside all counsel, all witnesses, all representatives and shall call upon each individual accused with the authority of the Court''s own voice to make a statement with his own lips. Answers given by the accused to the questions put to him during such an examination have a practical utility for Criminal Courts. Apart from affording an opportunity to the delinquent to explain incriminating circumstances against him, they would help the Court in appreciating the entire evidence adduced during the trial. The submission that if the accused is an illiterate person, the personal examination will cause inconvenience and harassment to him is already repelled by the Supreme Court in the decisions in Bibhuti Bhusan Das Gupta and Another Vs. State of West Bengal, and Usha K. Pillai Vs. Raj K. Srinivas and others, , referred to supra.

The contention of the learned counsel for the petitioners that the accused is entitled to secure legal consultancy and advice as to what type of answer he should give personally when examined u/s 313, Cr.P.C. if accepted, would amount to allowing the pleader to answer the questions on behalf of the accused. The privilege and the duty of answering the questions by the accused u/s 313, Cr.P.C. cannot be delegated to a pleader. The pleader cannot do what only the accused can do personally. The pleader may be permitted to represent the accused while the prosecution evidence is being taken, but, at the close of the prosecution evidence, the accused must be questioned and the pleader cannot be examined in his place.

Even in the latest judgment of the Apex Court in Basavaraj R. Patil and Others Vs. State of Karnataka and Others, , both the majority view and the minority view are in unison insofar as the proposition that u/s 313 proceedings the accused must answer the questions personally. According to the majority view, in appropriate cases, 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 and makes an application to the Court accompanied by an affidavit with assurance and undertaking and if the Court is satisfied about the same, it is open to the Court to supply the questionnaire and fix the time within which the same has to be returned duly answered and signed by the accused as stated therein. Even in the exceptional cases, as stated above, the accused has to answer personally the questionnaire. The Apex Court in clear terms has laid down the meaning of examination of accused personally u/s 313 of Cr.P.C. and that legal position is well settled. Hence, the contention of the petitioners that the word "personally to explain" in Section 313(1) of the Code has to be interpreted as personal explanation after securing legal consultancy and advice cannot be accepted.

Right from the commencement of the trial, the counsel is present with the accused. Even during the proceedings u/s 313 of the Code, the counsel is present in the Court. But, the accused alone has to answer the questions personally. If the statute gives the accused a personal privilege or imposes upon him a personal duty, only he can exercise the privilege or perform the duty. At the point of time, the accused cannot answer the questions with legal advice and consultancy, since it will not amount to examination of the accused personally as per the mandate of Section 313 of the Code. The contention of the petitioners that denial of legal consultancy and advice to the accused at the time of proceedings u/s 313 of the Code amounts to violation of fundamental right contemplated under Article 21 and 22(1) of the Constitution of India is not correct and has to be rejected. There is no violation of the fundamental rights as contended, since the incorporation of the provision necessiating examination of the accused personally, is based on the recommendation of the Law Commission which was accepted by Parliament.

After the witnesses for the prosecution have been examined, a duty is cast upon the Court to question the accused personally to explain any circumstances appearing in the evidence against him. The prosecution witnesses are subject to chief and cross-examination in the presence of the accused and copies of their testimony are provided to the accused then and there. The questions u/s 313 of Cr.P.C. are confined to the evidence already on record, the copies of which are available with the accused and his counsel by then and hence there is no need for supplying questionnaire in advance. There is bound to be time gap between the closure of prosecution evidence and the proceedings u/s 313 of the Code and it will afford reasonable time for reflection of mind. The contention of the petitioners that non-furnishing of the questionnaire u/s 313 of the Code in advance for reflection of mind will amount to violation of Articles 14 19(1)(a) and 21 of the Constitution of India is devoid of merit and cannot be accepted. There is no violation of the principles of natural justice as contended by the petitioners. The trial Court has rightly rejected the petition and there is no reason to set it aside.

In the result, the petition is dismissed. Connected Cri. M.P. No. 119 of 2002 is also dismissed.