Delhi High Court
Praveen Agarwal vs Cbi on 19 September, 2014
Author: Ved Prakash Vaish
Bench: Ved Prakash Vaish
$~2
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 19th September, 2014
+ CRL.M.C. 3730/2014
PRAVEEN AGARWAL ..... Petitioner
Through: Mr.Mohit Mathur & Mr.Sanchit
Dhawan, Advs.
versus
CBI ..... Respondent
Through: Ms.Sonia Mathur, Standing
counsel with Ms.Meghna Rohtagi,
Advocate.
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
VED PRAKASH VAISH, J. (ORAL)
1. The petitioner has challenged orders dated 13.02.2014 and 16.08.2014 passed by learned Special Judge (CBI), Central District, Tis Hazari Courts, Delhi by filing the present petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.').
2. The petitioner is facing trial in case FIR No.RC-4(A)/91-SIU(X) registered at PS CBI/SIU (X) for the offences under Section 120B/420 IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. After conclusion of prosecution evidence, statement of accused/petitioner under Section 313 Cr.P.C. was recorded.
Crl. M.C. No.3730/2014 Page 1 of 7The defence evidence was also recorded. Thereafter, final arguments were heard and case was fixed for orders/clarification on 28.07.2014.
3. Vide order dated 13.02.2014, trial Court directed the accused persons including the petitioner to furnish bail bond under Section 437A Cr.P.C. Vide order dated 16.08.2014, trial Court observed that additional statement of the petitioner along with other co-accused persons under Section 313 Cr.P.C. is required as some of the documents were inadvertently left out for examination of the accused persons under Section 313 Cr.P.C. The case was adjourned for recording additional statement under Section 313 Cr.P.C.
4. Feeling aggrieved by the said orders, the petitioner has filed the present petition.
5. Learned counsel for the petitioner submits that the statement of accused under Section 313 Cr.P.C. was recorded on 06.07.2013 and final arguments were concluded on 13.02.2014. The trial of the case has been concluded and the provisions of Section 313 Cr.P.C. cannot be invoked at this stage. The additional statement of accused under Section 313 Cr.P.C. would prejudice the rights of the petitioner as the documents now sought to be put to the petitioner were not found to be incriminating at the time of recording statement of accused under Section 313 Cr.P.C. According to counsel for the petitioner, the accused persons cannot be examined time and again on the pretext that certain questions have not been put. Mr.Mathur, counsel for the petitioner further submitted that discretion under Section 313 (1) (a) Cr.P.C. can only be exercised during the inquiry or trial of a case. The documents which are sought to be put to the accused persons were available on record.
Crl. M.C. No.3730/2014 Page 2 of 76. Learned counsel for the petitioner also submits that there was no occasion for directing the petitioner to furnish the bail bond under Section 437A Cr.P.C.
7. At this juncture, it is necessary to reproduce the provisions of Section 313 Cr.P.C.
"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.Crl. M.C. No.3730/2014 Page 3 of 7
[(5) The Court 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.]"
8. 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. 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 vs. 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.
Crl. M.C. No.3730/2014 Page 4 of 79. The very usage of the words such as 'at any stage' clearly spells out that this Section is expressed in the widest possible terms and do not limit the discretion of the Court in any way. However, the very width requires a corresponding caution that the discretionary power should be invoked as the exigencies of justice require and exercised judiciously with circumspection and consistently with the provisions of the Cr.P.C. As Section 342 of Cr.P.C. is corollary to the present Section 313 Cr.P.C., it is relevant to note the observation made by the Apex Court in 'Mathew vs. T.C. State', AIR 1956 SC 241, which reads as under: -
"11. The purpose of section 342 is set out in its opening words- "for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him".
If the accused is not afforded that opportunity, be is entitled to ask the appellate Court to place him in the same position as he would have been in had he been asked. In other words, he is entitled to ask the appellate Court, which is the ultimate Court of fact, to take the explanation that he would have given in the first Court into consideration when weighing the evidence in just the same way as it would have done if it had been there all along. But if he does not ask this in the last Court of fact he is in little better position when the case comes here than be would be in had he, say, omitted to call, in his defence, a witness who, he says, would have deposed in his favour. In very exceptional cases be might be allowed to call such a witness even at such a stage, but if he does not ask for that when his case is under appeal he would normally have but slender hope of succeeding here. It is true he is in a stronger position when section 342 is in question because the section places a solemn and serious duty on the Court, and the accused can very rightly and properly complain if the Court fails to do its duty; but when all is said and done, he cannot claim to be placed in a better position than he would have been in bad the Court discharged its duty at the outset. Therefore, all he is entitled to say on appeal is, "I was not asked to Crl. M.C. No.3730/2014 Page 5 of 7 explain this matter, Here is my explanation; this is what I would have said: please consider it". But if he does not take up that position- at the appellate stage and complains of prejudice for the first time here, the inference is strong that the plea is an afterthought and that there was no real prejudice."
10. The fair opportunity to the accused or justice does not mean benefit to the accused ignoring injustice to the victim. The balance and equilibrium has to be maintained.
11. In the instant case, the statement of the accused under Section 313 Cr. P.C. was recorded on 06.07.2013 and the arguments were heard on 13.02.2014. The trial Court found that some documents have not been put to the accused persons under Section 313 Cr. P.C. Admittedly, the present matter is at the stage of 'trial', as judgment was yet to be pronounced and as per the provisions of Section 313 Cr.P.C. and perusal of above judgment makes it clear that examination under Section 313 of Cr.P.C. can be conducted at any stage in the interest of justice. The trial court found that it was necessary to put the said documents to the accused and, therefore, the case was adjourned for recording further additional statement of accused. In my view there is no illegality or infirmity in the impugned order dated 16.08.2014 passed by learned trial court.
12. Now coming to the other submission of counsel for the petitioner that the trial Court has directed to furnish the bail under Section 437A Cr.P.C. In this regard, it may be mentioned that Section 437A requires that before conclusion of the trial or appeal, the Court trying the offence or the Appellate Court, as the case may be, shall require the accused to execute bail bonds with sureties, to appear before the higher Court as and Crl. M.C. No.3730/2014 Page 6 of 7 when such Court issues notice in respect of any appeal or petition filed against the judgment of the respective Court and such bail bonds shall be in force for six months. If the accused fails to appear, the bond stand forfeited and the procedure under section 446 shall apply. Section 437A Cr.P.C. nowhere speaks of releasing the accused on bail. The object of Section 437A Cr.P.C. is to secure the attendance of an accused in cases where appeal are likely to be filed against the verdict of acquittal.
13. That being so, there was no occasion for directing the accused to furnish the bail bond under Section 437A Cr.P.C.
14. In the light of aforesaid discussion, order dated 13.02.2014 is set aside whereby it directs the accused persons to furnish bail bond under Section 437A Cr.P.C. The trial court record be sent back forthwith.
15. In above terms, the petition stands disposed of.
(VED PRAKASH VAISH) JUDGE SEPTEMBER 19, 2014 gm Crl. M.C. No.3730/2014 Page 7 of 7