Madhya Pradesh High Court
Shyam Sundar Mundra vs Central Bureau Of Investigation on 6 September, 2021
Author: Sujoy Paul
The High Court Of Madhya Pradesh
MCRC-41660-2021
(SHYAM SUNDAR MUNDRA Vs CENTRAL BUREAU OF INVESTIGATION)
Indore, Dated : 06-09-2021
Heard through Video Conferencing.
Shri S.K. Vyas, learned sr. counsel along with Shri Harshwardhan
Pathak, counsel for the petitioner.
Shri Himanshu Joshi, learned counsel for the respondent/CBI.
Heard finally, with the consent of both the parties.
ORDER
Per : Anil Verma, J :
Present petitioner has preferred this petition under section 482 of
Cr.P.C against the impugned order dated 12/08/2021 passed by XVII
Additional Sessions Judge, Indore District- Indore in Special Case no.
1/2009, wherein learned Judge has dismissed the application filed by the
petitioner for not asking question to explain inadmissible evidence in
examination of the accused under section 313 of Cr.P.C.
2. Brief facts of the case are that petitioner and other co
accused persons are facing trial for offences punishable under ection
120-B of IPC and section 7, 13(2) R/W 13 (1)(d) of P.C. Act, 1988. After
submission of charge sheet, charges were framed and the prosecution
had examined the witnesses and adduced the evidence. Now the case is
fixed for examination of the petitioner under section 313 Cr.P.C.
3. The petitioner submits that during examination, it is alleged
that there exists telephonic conversation between the witnesses and the
accused and also between the accused persons and said conversation is
alleged to have been recorded on electronic recorder and transferred to
various compact disk (CD) as also, the output of the same compact disk
is reduced in to transcriptions.. During the examination of prosecution
witnesses, the defense has objected to admissibility of the aforesaid
evidence and the said objections were dully recorded in the deposition of
prosecution witnesses with a view that a decision qua will be taken at the
time of final judgment. While recording the evidence of Shri Santosh
Kumar Sharma, ( P.W.11), objection was raised by the defense counsel
with respect to playing of CD and the learned trial court allowed the
objection and held that in absence of certificate U/s 65 -B of the Indian
Evidence Act, the compact disk cannot be permitted to be played. The
said order of the trial Court has not been challenged by the prosecution
before superior Court, thus, it became final. In the aforesaid
circumstances, evidence contained in article (CD) i.e. A & B and their
alleged transcripts are inadmissible in evidence. Present petitioner moved
an application before the learned Trial court praying that in absence of
proper certificate, the article (CD) i.e. A & B and exhibit P-11, P-12, P-
20, P-21, P22, P-24 to P-32, P-59, P-60, P-63/2, P-64/4, P-65/2 to 65/5
and P-66/2 are inadmissible in evidence and no question be put to him
under section 313 of Cr.P.C. as the question can only be put with regard
to those circumstances and evidence which are legal and admissible.
4. Learned counsel for the petitioner further contended that
the order of the trial Court is contrary to law and facts on records.
Learned trial Court has already deced that the Articles A & B are
inadmissible in evidence, therefore, by putting question based on
inadmissible evidence will seriously prejudice the petitioner's right to fair
trial. Under section 313 of Cr.P.C, the petitioner is required to give his
statement with respect to only such evidence as has been legally proved
on record by the prosecution. Learned trial Court can only put the
questions which are found to be admissible and has been legally proved
in accordance with the provisions of Indian Evidence Act. Hence, he
prays that this petition be allowed and the impugned order passed by the
trial Court be set aside and the trial Court be directed to put only legally
admissible evidence appearing in the prosecution evidence to answer and
for explanation under section 313 of Cr.P.C.
5. Per-contra, learned counsel for the respondent opposes the
petition and prays for its rejection by stating that the Articles A & B and
other exhibited documents during the evidence of the prosecution and
the facts related with the above documents are subject to cross-
examination by the accused persons, so incriminating circumstances
came, appearing against the accused in evidence, should be put before
the accused to enable him to tender his explanation and particular
circumstances should be put to him for explanation in terms of section
313 of Cr.P.C.
6. Plain reading of section 313 of Cr.P.C discloses that the Court
has power to examine the witnesses in two stages ;
i) The Court may, at any stage, examine the
accused for the purpose of enabling him personally to explain
any circumstances appearing in the evidence against him.
ii) The Court shall, after the witnesses for the
prosecution have been examined the accused for the purpose of
enabling him personally to explain any circumstances appearing
in the evidence against him.
7. Learned counsel for the petitioner has placed reliance upon
the judgment delivered by Bombay High Court in the case of Hamid S/o
Rahim Khatim and others Vs. State of Maharashtra reported in
1999(2) MHLJ, 491, in which it has been held that ;
"Learned Additional Sessions Judge should not have put
inadmissible portion to the accused under section 313 of Cr.P.C
and should not have solicited explanation of the accused on
inadmissible portion of the evidence. The duty is of three kinds,
(1) Natural Duty (2) Moral Duty (3) Legal Duty. The duty
contemplated under section 313 of Cr.P.C is legal duty and
therefore, the judicial officer should take utmost care and
precaution in discharging legal duty cast on him. The recording
of the statement of accused under section 313 of Cr.P.C is not
an empty formality".
8. In the case of Shajaji Dattu Patil Vs. State of
Maharashtra reported in 1993(1) Crimes 67 (Bom-DB), it has been
held as under ;
"It is always better and safer and in the interests of
better administration of criminal justice that each and every
circumstance emerging form the record against the accused is
put To him. Justice requires that questions are put in a manner
and style and form so as to be easily comperhensible to
persons in a position of the accused. It is better if each
question contains one circumstance alone and not a
combination of several circumstances in order to provide to
accused a proper and adequate opportunity to explain the
circumstances against him, it is but fair and just that the
circumstances are properly put to him in the first place. That
will not only help that accused but also help the Appellate Court
in correctly appreciating inter alia, on the basis of the said
examination the truth or atherwise of one or the other story."
9. It is noteworthy that at the stage of recording of statement
of accused under section 313 of Cr.P.C, the trial Court cannot decide
admissibility of evidence, it can be decided after hearing and completing
evidence of both the parties. At the time of final adjudication, the trial
Court can decide admissibility of the evidence during marshalling of
entire evidence available on record.
10. On consideration of all the facts and circumstances of the
present case, this Court is of the considered opinion that the impugned
order of the trial court does not suffer from any legal infirmity, which can
be called for any interference by this Court.
11. In view of the aforesaid, it is not fit case to exercise the
powers vested to this Court under section 482 of Cr.P.C, as there is no
abuse of process of Court, nor interest of justice, so require
12. Consequently, present petition filed under section 482 of
Cr.P.C by the petitioner is hereby dismissed.
A copy of this order be communicated to the trial Court
concerned for information and necessary compliance.
C C as per rules.
(SUJOY PAUL ) ( ANIL VERMA)
JUDGE JUDGE
Digitally signed by AMOL N
MAHANAG
Date: 2021.09.09 18:07:33
+05'30'
