Calcutta High Court (Appellete Side)

Md. Ramjan vs Unknown on 14 July, 2022

14.7.2022
Court No.35
Sl. No. 16
SD
                                       CRR 30 of 2020

              In the matter of: Md. Ramjan
                                                                     ....Petitioner.
              Mr. Kushal Paul
                                                              ... for the Petitioner.
              Mr. Prasun Kr. Datta
              Md. Kutubuddin
              Mr. Santanu Deb Roy
                                                                  ... for the State.


                    Ajoy Kumar Mukherjee,J.(Oral):

                    Affidavit of service filed by the petitioner in Court today be

              kept with the record.

                    Being aggrieved by and dissatisfied with the impugned

              examination of the petitioner under Section 313 of the Code of

              Criminal Procedure by the learned Additional District & Sessions

              Judge, 2nd Court, Raiganj, Uttar Dinajpur in POCSO Case No.60 of

              2014, the present revisional application has been preferred.

                    The petitioner has contended that the petitioner is an accused

              in the aforementioned case. The allegation leveled in complain is

              that the defacto complainant and the present petitioner were in love

              affair and taking advantage of such intimate relationship, it is

              alleged that the petitioner herein committed rape upon her on

              several occasions. It is further alleged that the parties decided to

              marry on 02.5.2013 and accordingly, they married each other by

              way of swearing an affidavit in Raiganj Court.     The complainant

              further alleged that the petitioner initially used to make contact

              with her at her residence but after sometime the petitioner stopped

              making contact with her and as such, she has lodged complain that

              the petitioner committed rape upon her on the promise to marry.
                           2




After completion of investigation, police submitted charge-sheet

against the petitioner. The evidence of prosecution completed on

06.8.2018

by recording the deposition of PW-7. After completion of

deposition of prosecution witnesses, the learned trial court

examined the petitioner under Section 313 of the Code of Criminal

Procedure vide the impugned examination on November 14, 2018.

Mr. Kushal Paul, learned counsel appearing on behalf of the

petitioner, submits that the examination of the accused person has

not been done in accordance with law and the principles laid down

under Section 313 of the Code of Criminal Procedure. Only ten

questions were put to the petitioner and it appears that each

question covered almost half page and in each question several

questions were jotted down.

Mr. Paul further submits that due to such lengthy and

complex questions, it became difficult for the petitioner to give

answer to such questions and learned trial court recorded the

answer given by the petitioner in one line in Bengali vernacular

stating "onekguli prashna. Jayaga com. Ki kore uttar debo. Sob

mithya are baje katha" (There are so many questions to answer.

There is less space. How can I give the answers? All are false and

rubbish).

It is further submitted that in answer to all the questions, the

learned trial court more or less recorded the same statement. He

further submits that learned court below failed to appreciate that

the examination of the accused under Section 313 of the Code of

Criminal Procedure should be done in clear and unambiguous

manner and he ought not to put question which are lengthy and

complex or which are difficult to understand by the accused person.

Mr. Prasun Kr. Datta, learned counsel appearing on behalf of

the State, submits that recording itself shows that without

complying the provisions as laid down under Section 313 of the

Code, learned Magistrate has recorded the statement of the accused

and such recording is not fair and caused prejudice to the accused

and accordingly, appropriate direction may be given to the learned

trial court for examining of the accused strictly in accordance with

law laid down in Section 313 of the Code.

I have gone through the examination of the accused as done

by the learned Magistrate vide order dated November 14, 2018. Out

of six similar type questions put to the petitioner /accused,

question No. 2 and answer given may be quoted for better

understanding of the issue:

"Q 2. It is evidence against you emanating from PW-1, VG in her

examination-in-chief has deposed that she lodged complaint to the O/C

Chakulia PS and has signed on the complaint which was submitted by her.

She knows how to read both English and Bengali writing. She has further

deposed that the complaint was written as per her statement/instruction

and it bears her signature. The complaint was written by the scribe in her

presence and the written complaint including the signature of the VG is

marked Ext. 1 on proof She has further deposed that her father is

agriculturalist and they are four brothers and two sisters and VG was still

reading. The name of her school is Sakuntala High School situated at

Hatimara and was a student of class (X). She was brought before the

Magistrate for recording her statement of the incident occurred upon her

and the statement of the VG recorded u/s 164 of Cr.P.C. by the Ld.

Magistrate is marked Ext.2 and put her signatures on the recorded

statement and the signatures of VG on the recorded statement are marked

Ext.2(1), 2(2), 2(3), 2(4) & 2(5) on proof. She was brought for medical

examination at Islampur Hospital and the signature of the VG on the

medical examination report is marked Ext.3. At the time of incident, Ramjan

was learning computer at Hatimara and the incident occurred since 2012

and continued. She has further deposed that Rarmjan developed love-

affairs with her in the year 2012 and she did not want to love him but he

created disturbances. She told him that she is the daughter of a poor family

and he is a son of moneyed man so she cannot marry him. He told her that

in love-affair there is no difference between a poor and moneyed man. He

also told her that if she refused the love affair with him he will die. In the

month of May of the year 2013 she herself and Ramjan came to Raiganj

Court for Court marriage and Ramjan gave her a paper where she has

signed and by doing that he earned her confidence. She has further

deposed that after that he called her at the bamboo groves with situated

near to the ICDS Anganwari Centre of their village at night at 10:00 pm and

he committed sexual assault on her repeatedly as per his will. She told

him to bring her to their house and Ramjan answered that she has to stay

to her house and to continue her study and he will complete computer

learning and thereafter he will bring her to their house. She continued her

studies as he told her but in the month of May 2014 she learnt that Ramjan

was going to marry. She therefore tried to contact with him but she failed to

contact with him as he did never meet with her and after that and on query

from local people she learnt that really he was going to marry the daughter

of his aunt and knowing about all those facts she lodged the complaint

against Ramjan to the O/C, Chakulia PS and these are the Xerox copies of

7 love letters given to her by Ramjan, the original of which are lying in her

custody. She is acquainted with the handwriting of Ramjan. She also may

produce the certificate of her school to show her age and also to that on

class she was studying. Police seized one notarized marriage declaration

and seven love letters written by accused to her and the seizure list bears

her signature which is marked Ext.4 and the original notarized marriage

declaration and seven love letters which are returned by police under

zimmanama and the zimmanama is marked Ext. 5 and the her signature at

zimmanama is marked Ext.5/1. She has brought original ove letters

including greeting consisting of seven sheets which are marked Ext.6

series and the Xerox copy of the notarized declaration of marriage is

marked Ext. X for identification."

What you have to say

Ans. " ONEKGULI PROSNO. JAIGA KOM. KI KORE UTTOR DIBO. SOB

MITTHA AR BAJE KATHA."

Before going to further details, Section 313 of the Code is

reproduced herein below:-

"313. Power to examine the accused. - (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court -

(a) may, at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) No oath shall be administered to the accused when he is examined under sub-section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section."

The methodology to record examination of accused has been

stated in section 281 of the code of criminal procedure

"281. Record of examination of accused.

(1) Whenever the accused is examined by a Metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record. (2) Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the presiding Judge or Magistrate himself or

where he is unable to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in this behalf.

(3) The record shall, if practicable, be in the language in which the accused is examined or, if that is not practicable, in the language of the Court. (4) The record shall be shown or read to the accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers.

(5) It shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused. (6) Nothing in this section shall be deemed to apply to the examination of an accused person in the course of a summary trial."

Needless to say that , the main object of the section 313 of

the code is to ensure fair trial which is granted under Article 20 of

the constitution of India. Examination of accused under section 313

is not an empty formality, it has to be carried out in the interest of

justice and fair play to the accused.

Supreme Court in Asraf Ali Vs. State of Assam reported in

(2008) 16 SCC 328 explained the object of such examination

paragraph 15 :-

"15. What is the object of examination of an accused under Section 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". In Jai Dev v. State of Punjab (AIR1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with. He observed thus:

"The ultimate test in determining whether or not the accused has been fairly examined

under Section 342 would be to inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity."

Again in Sanatan Naskar and another vs. State of west

Bengal reported in (2010) 8 SCC 249, Apex Court discussed in

detail the scope and object of section 313 of the code.

10. The answers by an accused under Section 313 of the Cr.PC are of relevance for finding out the truth and examining the veracity of the case of the prosecution. The scope of Section 313 of the Cr.PC is wide and is not a mere formality. Let us examine the essential features of this section and the principles of law as enunciated by judgments, which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 of the Cr.PC. As already noticed, the object of recording the statement of the accused under Section 313 of the Cr.PC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating circumstances appearing against him in the evidence of the prosecution. At the same time, also permit him to put forward his own version or reasons, if he so chooses, in relation to his involvement or otherwise in the crime. The Court has been empowered to examine the accused but only after the prosecution evidence has been concluded. It is a mandatory obligation upon the Court and, besides ensuring the compliance thereof, the Court has to keep in mind that the accused gets a fair chance to explain his conduct. The option lies with the accused to maintain silence coupled with simplicitor denial or, in the alternative, to explain his version and reasons, for his alleged involvement in the commission of crime. This is the statement which the accused makes without fear or right of the other party to cross-examine him. However, if the statements made are false, the Court is entitled to draw adverse inferences and pass consequential orders, as may be called for, in accordance with law. The primary purpose is to establish a direct dialogue between the Court and the accused and to put every important incriminating piece of evidence to the accused and grant him an opportunity to answer and explain."

In Dharnidhar vs. State of U.P. and others, reported in

2010 AIR SW 5658, Supreme Court made it clear that the proper

methodology to be adopted by the court while recording the

statement of the accused under section 313 of the Cr.P.C. is to

invite the attention of the accused to the circumstances and

substantial evidence in relation to the offence for which he has

been charged and invite his explanation. In other words, it provides

an opportunity to an accused to state before the court, as to what is

the truth and what in defence, in accordance with law.

In State of Punjab Vs. Swaran Singh reported in (2005) 6

SCC 101, it was observed:-

"10. The questioning of the accused is done to enable him to give an opportunity to explain any circumstances which have come out in the evidence against him. It may be noticed that the

entire evidence is recorded in his presence and he is given full opportunity to cross-examine each and every witness examined on the prosecution side. He is given copies of all documents which are sought to be relied on by the prosecution. Apart from all these, as part of fair trial the accused is given opportunity to give his explanation regarding the evidence adduced by the prosecution. However, it is not necessary that the entire prosecution evidence need be put to him and answers elicited from the accused. If there were circumstances in the evidence which are adverse to the accused and his explanation would help the court in evaluating the evidence properly, the court should bring the same to the notice of the accused to enable him to give any explanation or answers for such adverse circumstance in the evidence. Generally, composite questions shall not be asked to the accused bundling so many facts together. Questions must be such that any reasonable person in the position of the accused may be in a position to give rational explanation to the questions as had been asked. There shall not be failure of justice on account of an unfair trial."

In view of aforesaid line of precedents it is clear that it is not

sufficient compliance to string together long series of facts and

asked he accused what he has to say about them as has been done

by the court herein. He must be questioned simply and separately

about each material circumstances which is intended to be used

against him in a way an illiterate person can appreciate and

understand. The practice of putting the entire evidence against the

accused in a single question and ask him to answer the same is

improper as the accused may not be in a position to give a rational

and intelligent explanation and as above such examination cannot

be done in a slipshod manner as it may result in impugned

appreciation of evidence.

The practice of Trial Court of putting the entire evidence

against the accused in a single question and given an opportunity

to explain the same has been seriously deprecated by the Supreme

Court in Satbir Sing Vs. State of Haryana (decided on 28th May,

2021) in the following words:-

"20. It is a matter of grave concern that, often, Trial Courts record the statement of an accused under Section 313, CrPC in a very casual and cursory manner, without specifically questioning

the accused as to his defense. It ought to be noted that the examination of an accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it is based on the fundamental principle of fairness. This provision incorporates the valuable principle of natural justice "audi alteram partem", as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the part of the Court to question the accused fairly, with care and caution. The Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense, since the inception of the trial, with due caution, keeping in consideration the peculiarities of Section 304B, IPC read with Section 113B, Evidence Act".

For the above reason, I have no other alternative but to set

aside the impugned examination of the petitioners under section

313 of the code on November 14, 2018 by the learned Judge Special

Court (POCSO), Additional District & Sessions Judge, 2nd Court,

Raiganj, Uttar Dinajpur along with order no. 42 dated 14.11.2018

passed in POCSO-61/2014 with the direction that the learned Trial

Judge shall examine the accused person under Section 313 of the

Code of Criminal Procedure putting separately each and every

incriminating circumstances appearing against him in the evidence

on record, in strict compliance with guidelines as discussed above

as precedents and also following methodology laid down in section

281 of the Cr.P.C.