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Judgment
David Annoussamy, J.—This is a revision case against conviction and sentence. The accused is a railway employee beloning to the Southern
Railway Mazdoor Union P.W. 2, who is the victim in this case, is the President of the Dakshina Railway Employees Union. On the eve of re-
election for the post of office bearers in the Southern Railway Employees Co-operative Society Ltd, there was a keen contest between both the
Unions and the campaign was in full swing. At that time a printed bill Ex. P1 was distributed on behalf of the Joint Committee in which the name of
the printer was mentioned and in which there were defamatory statements against P.W. 2. P.W. 2 sent a notice, Ex. P4, to P.W. 1 printer to which
P.W. 1 sent a reply Ex. P6 in which he mentioned the name of the accused as the person who gave the matter for printing, P.W. 1 also produced
the manuscript Ex. P2, bearing the signature of the accused, viz., Ex. P3. In the trial the printer was examined as P.W. 1 and the victim, viz., the
President of the Dakshina Railway Employees Union as P.W. 2, six exhibits were filed. The accused did not adduce any evidence. The trial Court
found the accused guilty of an offence under S.500, I.P.C., convicted him thereunder and sentenced him to pay a fine of Rs. 250 in default to
undergo three months rigorous imprisonment. On appeal, the First Additional Sessions Judge. Tiruchirapalli, by judgment dated 23rd September,
1982, confirmed the conviction and reduced the sentence of fine to Rs. 100. It is against that judgment the present revision is filed.
The case of the revision petitioner it that the accused revision petitioner was not properly examined under S.313, Crl. P.C., that he raised this
point before the appellate court and that the appellate Court repelled his objection stating that in a summary trial case the question need not be as
elaborate as in a warrant case.
The only question that arises for decision in this case is, whether the examination of the accused is vitiated so as to render the conviction
unsustainable. In this connection, the sessions court repelled the arguments of the accused that the examination should be a detailed one and deal
with each important circumstance and held that the decisions relied upon by the accused and prescribing such examination would apply only to
warrant cases or sessions cases and would not apply to summons cases. The first point therefore to be gone into is whether there is any differ-ence
in law as far as the examination of the accused is concerned, between the summons case on the one side and the warrant case on the other. As per
S.313, Crl. P.C., it appears, as contended by the Learned Counsel for the revision petitioner, that the examination should be the same in every
enquiry or trial irrespective of the nature of the case. No distinction is made in this connection except however that where the court dispensed with
the personal attendance of the accused it may also dispense with the examination in a summons case. But in a warrant case, even if the personal
attendance of the accused is dispensed with during trial, the court cannot dispense with his examination under S.313, Crl. P.C.
As far as the record of examination is concerned. S. 281, Crl. P.C., indicates how the examination of accused is to be recorded in sessions and
warrant cases. S. 281 also requires that the record of examination of accused should be in the form of questions and answers. But sub-S.6 of S.
281 says that the prescription of that section would not apply to the examination of an accused person in the course of a summary trial. S.263,
Crl.P.C. prescribes as to what should be the record in summary trial. One would find that the record is most summary one as it would be in the
form of a short entry in a register. Even the evidence will not be taken verbatim, the court would only record the substance thereof, as per S.264,
Crl.P.C. and S.274, Crl.P.C. A perusal of the above said sections of the Criminal Procedure Code would disclose that though the nature of the
examination under S.313, Crl.P.C. is not strictly speaking different in a summons or summary case from what it is in a sessions and warrant cases,
there is considerable difference, however in the mode of recording. Further the examination itself may be dispensed with altogether in the former
case, when his presence during trial has been dispensed with.
Taking into account these differences and also the fact that normally the circum stances in a summary trial would be rather simple and no
essential circumstances would escape the attention of the accused during the evidence itself, one would come to the conclusion that even in the
nature of the examination therewould be practically a difference. In fact, if the Magistrate has followed strictly the provisions of Ss.281 and 263,
Crl.P.C. the exact questions put to the accused would not be even available for raising a contention, like the present one. But, in this case, the
Magistrate for reasons best known to him has recorded his examination of the accused under S.313, Crl.P.C. in the form of questions and answers
which he is not bound to do.
Now let as turn to find out whether the questioning, as disclosed by the records in this case, is an adequate compliance with the prescriptions of
the Code. Questioning under S.313, Crl.P.C. is contemplated in two stages. First during toe course of the examination of witnesses by the
prosecution. Normally, the accused explains away all circumstances appearing against him through the process of cross-examination. If any
circumstance has not been explained away, the court may as the evidence proceeds, draw the attention of the accused to any circumstance which
appears important to the court and which have escaped the attention of the accused. The second stage is after the closure of the evidence, the
court shall examine the accused generally. This is the occasion for the accused to put forth his ctse. Learned Counsel for the revision petitioner
drew my attention to the decision of the Supreme Court in Ajmer Singh Vs. The State of Punjab, . It was held that it was not sufficient compliance
with the section to generally ask the accused that having heard the prosecution evidence what he has to say about it and that he must be questioned
separately about each material circumstance, which is intended to be used against him. This contingency would arise if the court has not examined
the accused in the first stage as and when the evidence proceeds. If the important details have not been put to the accused at that stage, the court
has to give the opportunity at least at the time of the second stage. This is a well settled question.
Learned Counsel for the revision petitioner has placed before me another decision of the Supreme Court in Sharad Birdhichand Sarda Vs. State
of Maharashtra, , where it was observed that unless the circumstance appearing against the accused is put to him in his examination under S.313,
Crl.P.C., the same cannot be used against him. It is obvious that no specific circumstance which connects the accused with the crime should be
used against him if the accused did not have an opportunity to explain it away. But it is also well settled law that any omission in a Criminal
proceeding would entail the setting aside of the conviction only if a failure of justice has in fact been occasioned thereby. This principle is also
embodied in S.465, Crl.P.C. If the accused has well understood all the circumstances appearing against him and has met them squarely in the
cross examination, the failure of puting the same to the accused under S.313, Crl.P.C. would not entail any irregularity susceptible of vitiating the
conviction. Therefore, the essential principle is that no circumstance connecting the accused with the crime should be taken as a basis for the
conviction, if the accused has not become aware of that circumstance, and did not have an opportunity to explain it away. This is the essential and
basic principle from which all the other principles flow. This is also what the Supreme Court had stressed with insistence.
In the present case, which is extremely simple, the witnesses for the prosecution have been thoroughly cross examined. There is no circumstance
which escaped the attention of the accused. At any rate, it is not shown that the failure of putting any circumstance to the accused has caused a
failure of justice. 1 therefore do not see any merit in this revision, which accordingly stands dismissed.