Parmesh Kumar vs State Of Uttarakhand & Another

Ravindra Maithani, J

The instant petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') has been filed for permission to the petitioner to file written submission under Section 313(5) of the Code in Special Sessions Trial No.35 of 2017, State Vs. Parmesh, pending in the court of District and Sessions Judge, Tehri Garhwal (hereinafter referred to as 'the case').

Heard learned counsel for the parties and perused the records.

Briefly stated, according to the petitioner, he is the accused in the case pending against him under Section 376(2), 328 and 506 I.P.C. and 3/4 Protection of Children from Sexual Offences Act, 2012. On 24.05.2019, the case was fixed for recording the statement of the petitioner under Section 313 of the Code. On that day, petitioner moved an application under Section 313(5) of the Code, requesting the Hon'ble Court to supply him the copy of the questionnaire, so that he may submit his written statement, but, according to the petitioner, the application was orally rejected and statement of the petitioner was recorded by the court, on its own.

Learned counsel for the petitioner would argue that provision of Section 313 of the Code are mandatory in nature, which gives an opportunity to the accused to explain the circumstances appearing against him in the evidence; it's non-compliance would be fatal to the trial and it is argued that in the instant case, petitioner had requested the court below to supply him the questionnaire, so that he may submit his written statement under Section 313(5) of the Code, because he is hard of hearing and could not hear what was asked from him, but the application of the petitioner was not even taken on record.

Learned counsel for the petitioner has also filed a copy of the application, which allegedly was filed before the court below in the case and invited the attention of this Court to the fact that the Court Reader had taken the application and had cancelled the stamps, as well, but subsequently returned it to the petitioner.

Learned State Counsel would argue that though the petitioner has no absolute right to submit his written statement under Section 313(5) of the Code, but if such an application is made and such opportunity is denied, reasons should be given by the court below, which is not done in this case.

What is argued is that the court below has not taken on record the application filed by the petitioner under Section 313(5) of the Code.

There is no order of the court below on record, rejecting the application of the petitioner under Section 313(5) of the Code. Before proceeding further, it would be apt to reproduce, as to what petitioner had stated in paragraph 4 of the affidavit, which is filed in support of the petition. It is as hereunder:-

"4. That in pursuance of above intention, 24/5/2018 was date fixed for statement u/s 313 CrPC. Accused applicant prayed before the court orally and in writing for submission of written reply u/s 313 CrPC and seeks only 2 hour to submit written reply of the questions prepared by learned court. Prayer of the accused applicant has been rejected orally, learned presiding officer recorded statement u/s 313 CrPC in her own style whatever she wanted to record and now next date is fixed 28 May, 2019 for defense witnesses. Reply recorded by learned Sessions Judge were not answered by the accused applicant. Entire reply recorded by learned Sessions Judge are false, concocted and manipulated. This act of learned Presiding Officer is amount to denial of valuable rights of the accused and shall cause serious miscarriage of justice to the accused, even he cannot show his bona fide conduct to the appellate court after recording this type of statement. Photocopy of application u/s 313(5) CrPC 24/05/2019 and statement u/s 313 CrPC 24/05/2019 are being filed herewith and marked as Annexure no.2 and 3."

Having considered the submission, this Court is of the view that petitioner should be redirected to the court below to present his application under Section 313(5) of the Code before the court below and the court below may be directed to decide it first before proceeding further with the case.

Accordingly, the instant petition is disposed of with a direction to the petitioner to submit his application under Section 313(5) of the Code before the court below on the next date fixed, which is said to be 31.05.2019. Learned court below shall afford an opportunity of hearing to the petitioner as well as to the prosecutor and decide the application before proceeding further with the case.

Let a certified copy of this order be supplied to learned counsel for the parties today itself on payment of usual charges.