Karnail Singh, L/Nk vs State

Mian JalaludDin, J.

(1) In this case after the statement of the Ballistic expert was recorded under section 428 of the Criminal Procedure Code the question arose

whether this court could examine the accused under section 342 of Cr. P. C. with a view to enable him to explain the circumstances that have appeared against him in evidence at the appellate stage, and also whether the court could question the accused in matters that have already come on record against him in the course of evidence during trial but which the trial court had inadvertently or carelessly omitted to put to him. Mr. M. L.

Qureshi the learned counsel for the accused at one stage contended that the examination of the accused could be confined only in respect of matters that have appeared against him in evidence at the appellate stage. But later on he shifted his stand and argued that Section 342 of Cr. P. C.

did not apply to evidence recorded under section 428 of Cr. P. C. as according to him recording of additional evidence under section 428 was neither an enquiry not trial. No question whatsoever could, therefore, be put to the accused as regards matter and circumstances appearing against him in the additional evidence. Nor could any question be put to the accused regarding a matter left out by the trial court with a view to fill in lacuna as it would seriously prejudice his case. In support of his contentious he has relied upon A. I R. 1925 Bombay 201 and A. I. R 1940 Pat. 29. The

Additional Advocate General has, on the other hand, controverted this proposition enunciated by Mr. Latif by urging that section 342 of Cr. P. C.

does not apply to the evidence recorded at the stage of the appellate proceedings and that the appellate court is not powerless to put question to the accused in order to do substantial justice in the case. The appellate court has got the same power in this behalf as the trial court has.

(2) In our view the matter needs to be studied from a deeper perspective considering the object of Sec. 342 CR. P. C. The Section is aimed at

enabling the accused to offer his explanation to the incriminating circumstances appearing against him in evidence. The policy of the Section is based on the principle invoked in the maxim 'audi alterm partem',. The accused should be heard, not merely on what is prima facie proved against

him, but on every circumstance appearing in evidence against him. He should be given chance to explain any and every matter appearing in evidence against him in order to promote the ends of justice, lest be may on conviction say that he was not heard in his defence and was given no time to explain. Therefore even if Section 342 may not be said to apply in term to the evidence recorded at the appellate stage nevertheless the principle underplaying the scheme of the Section does apply. Will it be fair to act upon the evidence of the Ballistic expert without giving the accused chance to explain circumstances appearing against him in this evidence ? In our view such a course will not be conducive to justice and will indeed be the very an thesis of fair trial. A similar question came up before a Full Bench of the Punjab High Court in A. I. R 1952 Punjab 214.

The following question was referred to the Full Bench for decision :

If in an appeal, reference or revision the High Court is of the opinion that the pro visions of S. 342 of Cr P. C. have been insufficiently complied

with, is it with in the powers of the court under the provisions of Section 428 or 375 or any other Section of the Code or of any other Law to examine or further examine the Convict ? If so under what circumstances ?

(3) The answer returned by the Full Bench is that it is within the powers of the High Court to examine and further examine the convict and that the

law does not place any restriction upon this power. The Full Bench further observed that Section 423 of Criminal Procedure Code gives wide powers to the appellate court. Additional evidence can be summoned by the appellate court under section 428 Cr. P. C. Section 540 enables any court at any stage of any inquiry, trial or proceeding to summon any person as a witness or examine any person in attendance though not summoned as a witness. The court has got power to recall and reexamine any person already examined. This section applies not only to trial court

but also to appellate court, for the words used are "any Court" and "trial or other proceeding under this Code" The object of the legislature in

giving these powers is not to constrict the functions of the appellate court or to fetter their discretion but to attain the ends of justice. There is no bar against an appellate court calling in an accused person and hearing him. It follows a fortiori that an accused can be heard in his own defence,

and in view of these provisions in Sections 423. 428 and 54U, Criminal Procedure Code, it may seem what astonishing to suggest that the High

Court cannot call the accused appellant and hear what he may have to say in his defence.

(4) AIR 1940 Pat. (Supra) relied upon by the Learned counsel for the accused has got no application to the facts of the case. Although in AIR

1925 Bombay 200 the view has been laid down that Section 342 of Cr P. C. does not apply to evidence recorded under section 428 of Cr.

Procedure Code and that the section applies to original trials, yet their Lordships did observe that there might be cases where the accused could properly be questioned with regard to the additional evidence taken under the directions of the appellate court, Therefore this authority cannot be said to have laid down a broad proposition of law imposing absolute fetters on the courts to examine the accused in respect of evidence recorded

under section 428.

(5) Again, this authority does not seem to have examined the merit of the principle and the object governing section 342 With great respect to the

learned Judges we will say that the principle underlying Section 342 does apply and is to be observed in respect of additional evidence recorded under section 428 of Cr. P. C. as well. There is, therefore, no merit in the contention of the learned counsel for the appellant that the High Court has no power to examine the accused in respect of additional evidence recorded by it. Nor can the contention of the learned counsel be upheld that this court cannot examine the accused in respect of matters that have appeared against him in evidence which have been left out by the trial

court. Relying upon the observations made in the Full Bench case of the Punjab High Court (Supra) we are positively of the view that there is no bar for this court to put questions to the accused on these matters. Indeed this must be done in order to give a fair chance to the accused to explain his case and this will go along way in serving the ends of justice. The contentions advanced are therefore overruled. The accused will now be produced for recording his examination on matters left out by the trial court and also in respect of additional evidence recorded by this court as this will not cause any prejudice to the accused and will promote the ends of justice. Case to come up on 25th of September 1974.