Madhya Pradesh High Court
Chetan Soni vs The State Of Madhya Pradesh on 9 August, 2023
Author: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL REVISION No. 3266 of 2023
BETWEEN:-
CHETAN SONI
1.
S/O SHREE VISNUPRASAD SONI,
AGED ABOUT 26 YEARS,
OCCUPATION: BUSINESS
R/O.KANKALI CHAUK, BAROD,
P.S. BAROD,
DISTRICT AGAR (M.P.)
.....PETITIONER
(SHRI GOURAV SHRIVASTAVA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER
THROUGH POLICE STATION BAROD
DIST.:AGAR (MADHYA PRADESH)
.....RESPONDENTS
( SHRI PRASHANT JAIN - GOVT. ADVOCATE)
......................................................................................................
Reserved on - 01.08.2023
Delivered on - 09.08.2023
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This revision coming on for hearing this day, the court passed the
following:
Signature Not Verified
Signed by: SUMATHI
Signing time: 11-08-
2023 11:34:26
2
ORDER
Invoking the revisional jurisdiction under Section 397 read with
Section 401 of Cr.P.C., the petitioner has filed this revision being
aggrieved of the judgment dated 19.07.2023 passed by learned First
Additional Sessions Judge, Agar District Shajapur, in Criminal
Appeal No.414/2016 whereby learned appellate Court has set aside
the judgment dated 04.12.2015 passed by Judicial Magistrate First
Class, Agar, in RCT No.991/2014 and remitted the case back to the
trial Court for re-examining the accused under Section 313 and to pass a
reasoned and cogent order.
2. In order to decide this criminal revision, brief facts of the case is
that the petitioner was tried by the Judicial Magistrate First Class, Agar,
District Shajapur and after considering the evidence available on record
he was convicted for offence under Section 304(A) of IPC, 1860 and
sentenced to undergo 1 year R.I and fine of Rs.1,000/- with default
stipulations. Being aggrieved by the aforesaid judgment, the petitioner
has filed an appeal before First Additional Sessions Judge, Agar, District
Shajapur, wherein learned Appellate Court in compliance of law laid
down by this Court in the Case of Sunil vs. State of M.P. reported in
2023 (1) MPLC 356 or 2023 Lawsuit (MP)68 remanded the matter to
the trial Court for re-examining the accused under Section 313 of Cr.P.C
and to pass a reasoned and cogent order after affording the opportunity
of defence evidence. Being dissatisfied by the impugned order, the
petitioner has knocked the portal of this Court by filing this revision
petition submitting that the impugned judgment passed by learned
appellate Court is neither legal nor proper.
Signature Not Verified
Signed by: SUMATHI
Signing time: 11-08-
2023 11:34:26
3. The petitioner in his revision memo and arguments submitted that
the impugned judgment of the learned appellant Court is against the fact
and also against the settled principle of law. It is submitted that first and
foremost, it is visualized from the bare perusal of the impugned
judgment that learned appellate Court has remitted back the matter for
the purpose of filling up the loop holes in the prosecution case, which is
wrong and illegal, therefore not sustainable in the eyes of law. The
learned appellate Court has misinterpreted the law laid down by this
Court in the case of Sunil vs. State of M.P., vide order dated 08.02.2023
passed in Cr.A. No.859/2010. It is also submitted that in case, if the
incriminating piece of evidence is available against accused and
opportunity to explain that evidence has not been afforded to the
accused, then on that basis conviction cannot be carried out.
4. In the course of arguments, learned counsel for the appellant
relied upon the Full Bench judgment passed in the case of Nasib Singh
vs. State of Punjab reported as (2022)2 SCC 89 and Rajkumar vs. State
(NCT of Delhi) reported in 2023 Lawsuit (SC) 533. On that basis, the
petitioner has expostulated that since the appellant was not confronted to
incriminating circumstances produced by the prosecution, the conviction
of the appellant stands vitiated. On these grounds learned counsel for the
petitioner requested to set aside the order of the appellate Court as well
as the order of the trial Court.
5. On the contrary, learned Govt. Advocate remonstrated that it is
duty of the Court to examine the accused properly. If the appellate
Court has remanded back the case for additional examination of the
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Signed by: SUMATHI
Signing time: 11-08-
2023 11:34:26
accused, it cannot be regarded against law. Ample evidence against the
appellant are available on record hence the order of trial Court and first
appellate Court cannot be turned down.
6. In the back drop of the rival submissions, the conundrum of the
case is as to whether the order of Appellate Court remitting back the
case to trial Court for additional re-examination of accused is incorrect
in the eyes of law and facts.
7. On this aspect I have gone through the judgment of appellate
Court and trial Court as well as the prosecution evidence recorded
before the trial Court and examination of accused. In para-10 of the
judgment, the learned appellate Court has clearly mentioned that in
examination of accused, no question was raised to the accused as to
whether the accused was driving the vehicle or whether the said incident
was caused by the accused. After going through the examination of
accused the aforesaid observation of the learned appellate Court is found
correct. In all 16 questions nothing was enquired with regard to who was
driving the vehicle, whereas in the depositions of the prosecution
witnesses, this was clearly frescoed that the said jeep was driven by
accused Chetan. On this aspect, statement of Jakir (P.W.4) can be taken
into account. It is also revealed from the perusal of para -10 of the
judgment that the appellant has raised the contention that on account of
not taking his explanation, his defence has been affected, under such
circumstance, there are only two courses available to the appellate Court
either to acquit the accused or remit the case for giving him opportunity
to explain the matter.
Signature Not Verified
Signed by: SUMATHI
Signing time: 11-08-
2023 11:34:26
8. In this regard, full Bench decision rendered by Hon‟ble Apex
Court in the case of Shivaji Sahabrao Bobade vs. State of Maharashtra
(1973)2 SCC 793 is relevant to quote here:
"16...... It is trite law, nevertheless fundamental
that the prisoner's attention should be drawn to every
inculpatory material so as to enable him to explain
it. This is the basic fairness of a criminal trial and
failures in this area many gravely' imperil the
validity of the trial itself, if consequential
miscarriage of justice has flowed. However, where
such an omission has occurred it does not ipso facto
vitiate the proceedings and- prejudice occasioned by
such defect must be established by the accused. In
the event of evidentiary material not being put to the
accused, the court must ordinarily eschew such
material from consideration."
9. Further in the case of Asraf Ali vs. State of Assam reported in
(2008) 16 SCC 328, Hon‟ble Apex Court has held in para 19 to 22 of the
aforesaid judgment, Hon‟ble Apex Court has held as under:
"19. Thus it is well settled that the provision is
mainly intended to benefit the accused and as its
corollary to benefit the court in reaching the final
conclusion.
20. At the same time it should be borne in
mind that the provision is not intended to nail him to
any position, but to comply with the most salutary
principle of natural justice enshrined in the
maxim audi alteram partem. The word "may" in
clause (a) of sub-section(1) in Section 313 of the
Code indicates, without any doubt, that even if
the court does not put any question under that
clause the accused cannot raise any grievance for
it. But if the court fails to put the needed question
under clause (b) of the sub-section it would result in
a handicap to the accused and he can legitimately
claim that no evidence, without affording him the
opportunity to explain, can be used against him. It is
now well settled that a circumstance about which the
accused was not asked to explain cannot be used
against him."
Signature Not Verified
Signed by: SUMATHI
Signing time: 11-08-
2023 11:34:26
21. Section 313 of the Code casts a duty on
the Court to put in an enquiry or trial questions to
the accused for the purpose of enabling him to
explain any of the circumstances appearing in the
evidence against him. It follows as necessary
corollary therefrom that each material circumstance
appearing in the evidence against the accused is
required to be put to him specifically, distinctly and
separately and failure to do so amounts to a serious
irregularity vitiating trial, if it is shown that the
accused was prejudiced.
22. The object of Section 313 of the Code is
to establish a direct dialogue between the Court and
the accused. If a point in the evidence is important
against the accused, and the conviction is intended to
be based upon it, it is right and proper that the
accused should be questioned about the matter and
be given an opportunity of explaining it. Where no
specific question has been put by the trial Court on
an inculpatory material in the prosecution evidence,
it would vitiate the trial. Of course, all these are
subject to rider whether they have caused
miscarriage of justice or prejudice. This Court also
expressed similar view in S. Harnam Singh v. The
State (AIR 1976 SC 2140), while dealing
with Section 342 of the Criminal Procedure Code,
1898 (corresponding to Section 313 of the Code).
Non- indication of inculpatory material in its
relevant facets by the trial Court to the accused adds
to vulnerability of the prosecution case. Recording
of a statement of the accused under Section 313 is
not a purposeless exercise."
10. In the case of Sukhjit Singh vs. State of Punjab reported as
(2014)10 SCC 270 Hon‟ble Apex Court endorsing its another judgments,
articulated as under:-
"14. ......... The whole object of the section is to
afford the accused a fair and proper opportunity
of explaining circumstances which appear against
him and that the questions must be fair and must
be couched in a form which an ignorant or
illiterate person will be able to appreciate and
understand. A conviction based on the accused‟s
failure to explain what he was never asked to explain
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Signed by: SUMATHI
Signing time: 11-08-
2023 11:34:26
is bad in law. The whole object of enacting Section
313 of the Code was that the attention of the accused
should be drawn to the specific points in the charge
and in the evidence on which the prosecution claims
that the case is made out against the accused so that
he may be able to give such explanation as he
desires to give."
11. On this fact, it is also relevant to quote the following observations
made by Hon‟ble Supreme Court in the case of Samsul Haque vs. State
of Assam reported in (2019) 18 SCC 161 wherein in para 22 as under:
"22. It is trite to say that, in view of the judgments
referred to by the learned Senior Counsel, aforesaid, the
incriminating material is to be put to the accused so that
the accused gets a fair chance to defend himself. This is in
recognition of the principles of audi alteram partem.
12. In the case of Sunil vs. State of M.P. (Supra), while referring and
endorsing the aforesaid observations of the Apex Court, the Division
Bench of this Court in the judgment has mandated as under:
"24. Since the Trial Court has not complied with the
requirements of Section 313 of Cr.P.C. in its spirit and has
not afforded sufficient opportunity for explanation to the
appellant against the incriminating evidence which was
used to base his conviction, therefore, such conviction and
sentence passed by Trial Court cannot be affirmed by this
Court. Resultantly, conviction and sentence passed by the
Trial Court is hereby set aside.
25. Looking at the statement of Deepchand (P.W.-9), FSL
report (Ex.P-22), and other evidence on record, this Court
is of the view that the case should be remitted to the
Sessions Court for proper examination under Section 313
of Cr.P.C. after giving proper opportunity to produce
defence evidence to the appellant and pass fresh judgment
after hearing both the parties expeditiously, preferably
within 45 days from the receipt of the record."
13. In the conspectus of the aforesaid principles and material on
record, it is obvious that if there is significant incriminating evidence on
record against the accused, then he should be given sufficient
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Signed by: SUMATHI
Signing time: 11-08-
2023 11:34:26
opportunity to explain it, otherwise it would vitiate the trial. In order to
comply with the principles of natural justice, the appellate Court is
competent to remand the case for additional examination of accused
under Section 113 of Cr.P.C.
14. Now coming to the law laid down by Hon‟ble Supreme Court in
the case of Rajkumar vs. State (NCT of Delhi), certainly in this case,
Hon‟ble Supreme Court has held that since the incriminating
circumstances have not been put to the accused during the examination
of accused the conviction of the appellant stands vitiated but the facts of
that case are much different to the case in hand. In order to express the
said difference para - 20 of Rajkumar vs. State(Supra) is worth
reproduce here:-
"Even assuming that the defect or irregularity was curable,
the question is whether today, the appellantaccused can be
called upon to explain the said circumstance. More than
27 years have passed since the date of the incident.
Considering the passage of time, we are of the view that it
will be unjust now at this stage to remit the case to the
Trial Court for recording further statement of the appellant
under Section 313 of CrPC. In the facts of the case, the
appellant cannot be called upon to answer something
which has transpired 27 years back. There is one more
aspect of the matter which persuaded us not to pass an
order of remand. The said factor is that the appellant has
already undergone incarceration for a period of 10 years
and 4 months."
15. In view of the aforesaid circumstances, Hon‟ble Apex Court found
that option of remand will be unjust. However, in the case at hand the
said incident took place on 27.09.2014, the case is less than 9 years old
and the appellant has not suffered any sentence. In addition to that the
appellant himself raised the point before the First Appellate Court
regarding not asking question with regard to incriminating facts.
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Signed by: SUMATHI
Signing time: 11-08-
2023 11:34:26
Therefore, owing to variance of facts, the petitioner cannot be benefitted
by the law laid down by the Hon‟ble Apex Coust in the case of
Rajkumar vs. State(Supra).
16. Shri Gaurav Shrivastava, learned counsel for the petitioner has
drawn attention of this Court to the law laid down by Hon‟ble Apex
Court in para 33 of Nasib Singh vs. State of Punjab (Supra) wherein
Hon‟ble Apex Court has discussed the formulation of principles of
retrial which is reproduced as under:
33.The principles that emerge from the decisions of this Court
on retrial can be formulated as under:
(i) The Appellate Court may direct a retrial only in „exceptional‟
circumstances to avert a miscarriage of justice;
(ii) Mere lapses in the investigation are not sufficient to warrant
a direction for re-
trial. Only if the lapses are so grave so as to prejudice the rights
of the parties, can a retrial be directed;
(iii) A determination of whether a „shoddy‟ investigation/trial
has prejudiced the party, must be based on the facts of each case
pursuant to a thorough reading of the evidence;
(iv) It is not sufficient if the accused/ prosecution makes a facial
argument that there has been a miscarriage of justice warranting
a retrial. It is incumbent on the Appellant Court directing a
retrial to provide a reasoned order on the nature of the
miscarriage of justice caused with reference to the evidence and
investigatory process;
(v) If a matter is directed for re-trial, the evidence and record of
the previous trial is completely wiped out; and
(vi) The following are some instances, not intended to be
exhaustive, of when the Court could order a retrial on the
ground of miscarriage of justice:
a) The trial court has proceeded with the trial in the
absence of jurisdiction;
b) The trial has been vitiated by an illegality or
irregularity based on a misconception of the nature
of the proceedings; and
c) The prosecutor has been disabled or prevented
from adducing evidence as regards the nature of the
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Signed by: SUMATHI
Signing time: 11-08-
2023 11:34:26
charge, resulting in the trial being rendered a farce,
sham or charade.
17. Stressing on the aforesaid findings regarding re-trial learned counsel
Shri Shrivastava submitted that if the matter is directed for re-trial the
findings and the record of the previous trial is completely wiped out.
However, the procedure of re-trial is used here regarding "shoddy"
investigation/trial, and it is not with regard to only asking question to
accused regarding incriminating circumstances. On this aspect Hon‟ble
Apex Court in Full Bench decision rendered in Nasib Singh (Supra) has
endorsed the enunciation of its judgment passed in Nar Singh vs. State
of Haryana reported in (2015)1 SCC 496 in para-29 as under:
" 26. In Nar Singh v. State of Haryana, this Court was
considering the question whether the Appellate Court can
direct a retrial if all the relevant questions are not put to
the accused by the trial court as required under Section
313 CrPC. This Court answered the question in the
affirmative, holding that the Appellate Court may
direct a retrial in such circumstances from the stage of
questioning the accused because non-compliance
of Section 313 CrPC had caused prejudice to the
accused.
"30.3. If the appellate court is of the opinion that non-
compliance with the provisions of Section 313 CrPC has
occasioned or is likely to have occasioned prejudice to the
accused, the appellate court may direct retrial from the
stage of recording the statements of the accused from the
point where the irregularity occurred, that is, from the
stage of questioning the accused under Section 313 CrPC
and the trial Judge may be directed to examine the
accused afresh and defence witness, if any, and dispose
of the matter afresh."
18. It means that in course of trial, if all the relevant questions are not
put to the accused by the trial Court and when the accused has shown
that prejudice was caused to him, the appellate Court is competent to
remand the case to examine the accused again under Section 313 of
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Cr.P.C. The learned trial Judge may be directed to examine the accused
and defence witnesses, if any, afresh and dispose of the case afresh. As
such, the retrial will be commenced from the stage of questioning the
accused under Section 313 of Cr.P.C. Since the aforesaid principle laid
down in Nar Singh (Supra) has been endorsed by Full Bench of
Hon‟ble Apex Court in the case of Nasib Singh (Supra) the aforesaid
contentions of the learned counsel for the defence is not substantiated.
19. So far as the arguments regarding filling up of loop holes or
lacuna is concerned, the fault of not examining the accused properly
cannot be attributed to the prosecution but rather it would be attributed
to the learned trial Court, hence the question of filling up of lacuna does
not arise. On this point in Nar Singh (Supra) Hon‟ble Supreme Court
has enunciated the following view, which is relevant to the context of
this case:-
"27. The point then arising for our consideration is, if all
relevant questions were not put to accused by the trial
court as mandated under Section 313 Cr.P.C. and where
the accused has also shown that prejudice has been caused
to him or where prejudice is implicit, whether the
appellate court is having the power to remand the case for
re- decision from the stage of recording of statement
under Section 313 Cr.P.C. Section 386 Cr.P.C. deals with
power of the appellate court. As per sub-clause (b) (i)
of Section 386 Cr.P.C., the appellate court is having power
to order retrial of the case by a court of competent
jurisdiction subordinate to such appellate court. Hence, if
all the relevant questions were not put to accused by the
trial court and when the accused has shown that prejudice
was caused to him, the appellate court is having power to
remand the case to examine the accused again
under Section 313 Cr.P.C. and may direct remanding the
case again for re-trial of the case from that stage of
recording of statement under Section 313 Cr.P.C. and the
same cannot be said to be amounting to filling up
lacuna in the prosecution case."
Signature Not Verified
Signed by: SUMATHI
Signing time: 11-08-
2023 11:34:26
20. Since the aforesaid law laid down by the Hon‟ble Apex Court
in Nar Singh (Supra) is neither overruled, nor distinguished; it holds
the field and therefore, the argument of the petitioner regarding filling
up of lacuna/loopholes is also found unsustainable.
21. In view of the aforesaid discussions and observations, this
Court is of the view there is no illegality or perversity in the
impugned order and no case for interference is warranted in this
revision petition, therefore, the same is dismissed as devoid of merits.
22. A copy of this order be sent to the concerned Court for
necessary information.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
sumathi
Signature Not Verified
Signed by: SUMATHI
Signing time: 11-08-
2023 11:34:26
