Uttarakhand High Court
Applicant / vs State Of Uttarakhand on 26 August, 2025
RESERVED ORDER
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI G. NARENDAR
AND
HON'BLE SRI JUSTICE ALOK MAHRA
Bail Application (IA No. 2 of 2024)
In
CRIMINAL APPEAL NO. 37 OF 2024
Diwan Singh Bhandari
... Applicant / Appellant
Versus
State of Uttarakhand
...Respondent
Counsel for the appellant. : Mr. Devesh Upreti, learned counsel.
Counsel for the State of : Mr. J.S. Virk, learned Deputy Advocate
Uttarakhand. General with Sri Rakesh Joshi, learned
Brief Holder for the State of Uttarakhand.
ORDER RESERVED : 19TH MARCH, 2025
ORDER DELIVERED : 26TH AUGUST, 2025
ORDER :(per Hon'ble The Chief Justice Sri G. Narendar) Heard the learned counsel for the appellant/ convict, and the learned Deputy Advocate General for the State of Uttarakhand.
2. At the outset, we wish to express our shock with the approach of the Trial Court. We are unable to decipher, if it was a mere imprudent approach or innocent mistake. Prima facie, we are constrained to observe so, after examining the lengthy questioning of the accused under Section 313 of the CrPC, wherein, in all, about 44 1 questions have been framed and posed to the appellant/ convict. The questions include the questions relating to the transfer of the Investigating Officer; appointing of the Investigating Officer; accident suffered by the Investigating Officer (all unrelated to the case); the instructions given by the Dy.S.P. to be present at the spot; the calls made by the Head of the Special Operations Group to the SHO, Someshwar P.S., asking him to join him in search operation pursuant to the information received; the entries made by the police personnel in the GD; and the forwarding of the sample to the FSL. From a reading of Section 313 CrPC, the understanding one can arrive at is that the Court is required to put questions relating to the circumstances appearing in the evidence recorded, against him - simply stated incriminating material against him. Section 313 CrPC reads as under :
"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 2 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."
3. The answers elicited before the Court are not mere one word answers, but a clear assertion that the proceedings were drawn in the Police Station; that he was not arrested at the alleged place, and in fact what is very pertinent and of some importance, is his answer to Question No. 43, where when asked, if he wants to give evidence in his defence, he has stated 'Yes', to the Question No. 43 which reads as under :
"Do you have to give evidence in your defence?"
4. In Question No. 44, when called upon to make a statement, he has given a statement, which has been recorded, but which unfortunately the Trial Court has completely failed to appreciate, and in fact has made out a 3 case in favour of the prosecution, which was not even the case of the prosecution. The statement of the appellant/ convict, which is on record, reads as under :
"Answer to Question No. 44 :
I am a resident of Jhooni Village and live at Haldwani along with family. And I run a fast food stall at Kalawati Chowk, Nawabi Road, there. On 13.10.2020, I came to Bageshwar from Village Jhooni. The distance of Village Jhooni from Bageshwar is 70-80 km. During the night, I stayed at my relative's house. Next day, I came to Station early in the morning to go to Haldwani. When I was standing at the Station, a white coloured car came, in which Basant and two other people were sitting. Basant Kunwar and brother Ramesh Singh Kunwar used to work at my Fast Food Stall. That is why, Basant knew me. He asked me to accompany them to Haldwani. On his asking, I sat in his car. Going a little forward, some people got the car stopped and said that they are SOG people and took the car to Someshwar Police Station. At the place where the car was stopped, they took our purse, phone. At Police Station Someshwar, the police personnel sat free Basant Kunwar and his two associates by taking money. They were asking for money from me also. I was not having the money demanded by them. Then, they lodged me in an illegal manner. Nothing was recovered from me."
5. The salient features of the above statement are, one, he was picked up from a short distance from Bageshwar and not from Someshwar (about 40 Kms), two, he has named two known and one unknown person as occupants of the car and he was merely a gratuitous passenger in it at the invitation of the Brothers who were his employees in his food stall and they three were let off by the police in Someshwar PS after taking bribe. In short, he points fingers at the Brothers as the real culprits 4 and that the investigation stood compromised on account of Bribe received by the police. The statement not only incriminates the Brothers but also the investigators.
6. Be that as it may. What perplexed us, and drew our attention is the innocuous prosecution version. The admitted version of the prosecution is that the appellant/ convict was travelling from Jhuni to Haldwani, and the distance between the two places is 220 Kms., and that he was carrying contraband from Jhuni to Haldwani and that he gave the name of the supplier. The distance between Jhuni to Someshar, where he is alleged to have been intercepted and apprehended, is about 91 Kms. The distance between Bageshwar & Someshwar is near about 40 kilometers. The version is that he was travelling on foot, and it is not in dispute that the route passes through desolate and forest areas and comprises of hills. The very allegation that he was travelling on foot, and was attempting to cover a distance of 220 Kms between Jhuni & Haldwani on foot, appears preposterous and raised our curiosity and demanded a closer appreciation of the material. Assuming for argument's sake that the version of the police is true - that he was indeed on foot, when he was apprehended, and that he was detained in the 5 morning at about 08:39 hrs on 14.10.2020, the catch is in the time he is stated to have left his Jhuni village or Bageshwar town. The prosecution version records that he had spent the night of 13.10.2020 in Jhuni village. If assuming that to be correct, then the question that stares at us is, whether in a matter of few hours, or within 24 hours, a person can travel on foot and cover a distance of 90 Kms within a couple of hours? If his version is taken then the question is how much time it would take to cover a distance of about 35 to 40 kilometers between Bageshwar & Someshwar. This, by itself, creates a serious doubt about the prosecution version.
7. That apart, certain inherent contradictions in the FIR further confounded the Bench. In one breath, it is said that the spot, where he was arrested, was a secluded spot and in the forest and that there was no independent witness, and in the same breath, it is said that the spot is 500 meters from the Tehsil office and a mere 1 Kms. from the habitation, and that the passersby, despite being requested by the Police, have refused to witness the various proceedings, like the recovery memo, or the arrest memo. As noted above, if it was a secluded spot, and in the forest, naturally pedestrians and passersby may not be 6 expected, but if it is a mere 500 meters from the Tehsil and just a kilometer away from the habitation, then certainly neutral persons, pedestrians and passersby can be expected.
8. The other incongruity is the absence of any independent impartial Gazetted Officer or Magistrate. The fact that the place, where the recovery or seizure is said to have been made, is hardly 12 minutes away from the Police Station, is borne out by the FIR itself, wherein it is stated that, on receipt of a call from the Head of the SOG, they left the Police Station at 08:58 A.M. and reached the spot at 09:10 A.M. is a matter of record and is also part of the charge-sheet. The vicinity being so close to the Police Station yet the prosecution would want the Court to believe that it is an abandoned locality. The fact remains that, from the said spot, several calls have been made to several persons, requesting their presence to comply with the search and seizure procedure mandated under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "NDPS Act"). It is pertinent to note that, even in Section 313 CrPC questioning, the claim of calls being made to various authorities, requesting their presence, has also been put to the appellant/ convict, but 7 pertinently, not a single CDR of even one of the phones has been produced, when admittedly the communication equipment used was mobile phones.
9. The further fact, that raised our curiosity, is not only the detailed statement recorded by the appellant/ convict, but also his attempts to place on record the Exhibits D-1 to D-5, which are RTI applications and replies, to demonstrate that the three government vehicles, which are shown in the records in the FIR and the charge-sheet, as having arrived at the spot, had really not travelled to the said spot. An attempt was made before the Trial Court and with the authorities, to seek information of the logbook for the dates 13.10.2020 and 14.10.2020, and the request has been met by the other wing of the prosecuting police with the answer that no such information is available, or no such logbook is available. If the answers to the questions posed under Section 313 CrPC are appreciated in the light of Exhibits D1 to D5, produced on behalf of the appellant/ convict, it is apparent that the appellant/ convict was attempting to demonstrate his case that neither he, nor the complainant, nor the Dy.S.P./ Gazetted Officer, as mandated under 8 Section 50 of the NDPS Act, had ever travelled to that spot.
10. The Dy.S.P. has travelled out of his jurisdiction, i.e. from Ranikhet Circle to Almora Circle. In other words, and in the words of the appellant/ convict, as answered by him to the questions posed to him under Section 313 CrPC, the case was a fabrication and he has been falsely implicated in the case. Prima facie, we assume so, as in the statement recorded by him before the Court, he has clearly given the names of certain persons, whom he was acquainted with, and who were travelling in a car and, as one of them was working with him in the foodstall, and being acquainted, he accompanied them in the car, and even more strange is the fact that despite him naming third persons as culprits, the prosecution has maintained a stoic silence. What confounds us further is the inability of the Court to appreciate this piece of information.
11. One other fact, which creates a suspicion in the mind of the Court, about the purity of the action against the appellant, is the insertion in the information memo. In the information memo, which is marked as Exhibit P-5, it is stated that the information was given by the officer at 22:14 hrs, i.e. in the night of 14.10.2020, when the time 9 of arrest is shown as 16:35 hrs, i.e. after a full 06 hours after the arrest, and the fact remains that the arrest was the last formality that was completed before they left for the Police Station and as noted above, the time taken to travel from the spot to the Police Station or from the Police Station to the spot, is a mere 12 minutes. Even more shocking is the fact that they spent nearly more than six hours at the same spot just to wait for the arrival of a Gazetted Officer, when it is the complainant's version itself that the Tehsil was a mere 500 meters away. It is relevant to reproduce Section 50 of the NDPS Act. The same reads as under :
"50. Conditions under which search of persons shall be conducted.--(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.
[emphasis supplied] (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-
section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted 10 Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974).0 (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."
12. A bare reading of the above provision would show that the officer, who intends to conduct a search of the body, is required to inform the person about the option available under law to have the search conducted in the presence of a Gazetted Officer or a Magistrate and if the person so requires it, the officer authorized under Sections 41 & 42 shall, without unnecessary delay, take such person to the nearest Gazetted Officer of any of the departments mentioned in Section 42, or to the nearest Magistrate. Sub-section (2) authorizes the Authorized Officer to detain such person for the purposes of search. The picture that emerges, after a combined reading of sub-section (1) and sub-section (2), is that the mandate of law requires the Authorized Officer to take the person to the nearest Magistrate or to the Gazetted Officer and that too without unnecessary delay, and not wait for several hours for the arrival.
11
13. In the case on hand, the facts reveal that there has been a delay of more than five hours in carrying out the search. The same is sought to be explained by stating that they made calls to the Circle Officer, Almora at 10:32, and as the Circle Officer refused, then a call was made to the Senior Superintendent of Police at 10:44; then a call was made to the Sub-Divisional Magistrate (Sadar); then to Naib Tehsildar, Someshwar; and finally to Circle Officer, Ranikhet. But, interestingly, neither the call detail records of the calling officer nor the CDRs of the officers, who were called upon, have been produced in evidence to explain and satisfy the Court about the delay, which is contrary to the provisions of sub-sections (1) & (2) of Section 50 of NDPS Act, which mandates that there shall not be any unnecessary delay. It is stated that, ultimately the Area Officer/ Circle Officer, i.e. the Dy.S.P., Ranikhet arrived at 15:00 hrs., and the time assumes significance, as the distance between Ranikhet and Someshwar is a mere 46 Kms. Interestingly, the time, at which the Dy.S.P./ Circle Officer, Ranikhet was contacted is not stated, probably to prevent scrutiny of the delay. If the arrival is taken as 15:00 hrs or 03:00 P.M., then the Officer has taken more than 04 hours to travel a mere 46 Kms.
12
14. Apart from these incongruities in the complaint itself, the shocker is in the judgment, more particularly in the appreciation of evidence and particularly the statement made by the appellant/ convict under Section 313 CrPC. In fact, the evidence of P.W.-3, i.e. the Dy.S.P./ Circle Officer, Ranikhet, who is interchangeably addressed as Area Officer, prima facie, appears to contradict the version of the complainant, who has recorded that he contacted the Area Officer, and that the calls were made between 10:30 to 10:45. In his evidence recorded by the Court, in paragraph no. 21, he has deposed that he has received a call on 14.10.2020 from the SSP, Almora, who informed him that a person has been caught with charas, and commanded him to proceed to the spot. A simple appreciation of the statement would imply that the SSP was already aware that charas has been seized, and the Area Officer/ Dy.S.P. was also made aware of the same, but it is pertinent to note that the P.W.-3, the Area Officer/ Dy.S.P. does not reveal, as to what time he received the call from the SSP, but would state that when he was on the way, he received a call at 01:16. No CDR is placed to demonstrate his statement, but the same is accepted by the Court as a gospel truth. We are constrained to, prima facie, observe so, in view of 13 the fact that a persistent attempt was made by the appellant/ convict to demonstrate that none of these witnesses had ever travelled to the spot.
15. P.W.-3 is the Area Officer of another Circle, i.e. Ranikhet Circle, while detention of the suspect was in Almora Circle and why the SSP did not direct the Circle Officer, Almora, is also a question that has gone unnoticed by the Trial Court, that too when the complaint reveals that it was the Circle Officer, Almora, who was first contacted at 10:32 and it is not in dispute that the Circle Officer is under the command of the SSP, Almora. As observed by us, the appellant/ convict could have been produced before the Naib Tehsildar in a matter of minutes, but for reasons unknown and not explained to the Court, the person, instead of being taken before a Gazetted Officer or the nearest Magistrate without unnecessary delay, was detained at the spot, which detention, prima facie, appears to be against the spirit of sub-sections (1) & (2) of Section 50 of the NDPS Act, which clearly mandates that such person shall be taken without unnecessary delay to the nearest Gazetted Officer, or the nearest Magistrate. In fact, the detention between 10:18 hrs. (A.M.) and 15:00 hrs. (P.M.) prima facie appears to be contrary to the 14 mandate of sub-section (2), which says that detention is permissible only till he can be brought before the Gazetted Officer, or the nearest Magistrate. The stringency, or the rigor of sub-section (2) of Section 50 has to be appreciated in the light of sub-section (3), wherein the nearest Gazetted Officer, or the Magistrate, may "before whom such person is produced, if he sees no reasonable ground for search, can forthwith discharge the person". In other words, a person detained can be virtually set at liberty by the Gazetted Officer, or the Magistrate. Despite the rigor of the said provision, the Trial Court has simply glossed over it and brushed it aside.
16. The observations of the Constitution Bench judgment of the Hon'ble Apex Court in the case of State of Punjab v. Baldev Singh, reported in (1999) 6 SCC 172 assumes significance. The Constitution Bench of the Hon'ble Apex Court has observed in paragraph nos. 25, 28 & 57(3) as under :
"25. To be searched before a gazetted officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a gazetted officer or a Magistrate would impart much more authenticity and creditworthiness to the search and seizure proceeding. It would also verily strengthen the 15 prosecution case. There is, thus, no justification for the empowered officer, who goes to search the person, on prior information, to effect the search, of not informing the person concerned of the existence of his right to have his search conducted before a gazetted officer or a Magistrate, so as to enable him to avail of that right. It is, however, not necessary to give the information to the person to be searched about his right in writing. It is sufficient if such information is communicated to the person concerned orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the person concerned of his right of being searched in the presence of a Magistrate or a gazetted officer, at the time of the intended search. Courts have to be satisfied at the trial of the case about due compliance with the requirements provided in Section 50. No presumption under Section 54 of the Act can be raised against an accused, unless the prosecution establishes it to the satisfaction of the court, that the requirements of Section 50 were duly complied with. (emphasis supplied by this Court).
28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right "that if he requires"
to be searched in the presence of a gazetted officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve a dual purpose -- to protect a person against false accusation and frivolous charges as also to lend creditability to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must thank itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of the judicial process may come under a cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for the law 16 and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted.
57. On the basis of the reasoning and discussion above, the following conclusions arise:
(1)......
(2)......
(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act."
17. In the instant case, the complaint itself records that there was prior information, and the complainant was called to take part in the search. In that view, as held by the Hon'ble Apex Court, the rigors of Section 50 of the NDPS Act applies with all force. In fact, this Bench has been witness to any number of prosecutions, in cases relating to narcotic substances, where the Gazetted Officer is one, who hails from the Department itself. If the said position is accepted, then the requirement of independent and respectable persons, as observed by the Hon'ble Apex Court, is rendered redundant. In fact, the facts narrated above, if viewed in the backdrop of the answers elicited before the Court during Section 313 CrPC questioning, makes the presence of independent and respectable 17 persons inevitable and mandatory. The requirement of law to produce a person, without unnecessary delay, either before the Gazetted Officer, or a Magistrate, would have completely eliminated the chance of the accused to allege otherwise, and as held by the Constitution Bench of the Hon'ble Apex Court, it would have verily established the credibility of the search.
18. That apart, the other serious lacunae that we have observed is the appreciation of the answers recorded in response to the questions posed by the Court under Section 313 CrPC questioning. The manner and method of appreciation of the answers elicited under Section 313 CrPC questioning has been appreciated by the Hon'ble Apex Court in the case of Sanatan Naskar and another v. State of West Bengal, (2010) 8 SCC 249. In paragraph nos. 21 & 22, the Hon'ble Apex Court has held as under :
"21. The answers by an accused under Section 313 CrPC are of relevance for finding out the truth and examining the veracity of the case of the prosecution. The scope of Section 313 CrPC 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 the judgments which are the guiding factors for proper application and consequences which shall flow from the provisions of Section 313 CrPC.
22. As already noticed, the object of recording the statement of the accused under Section 313 CrPC is to put all incriminating evidence to the accused so as to provide him an opportunity to explain such incriminating 18 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 therewith, 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 simpliciter 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. Once such a statement is recorded, the next question that has to be considered by the court is to what extent and consequences such statement can be used during the enquiry and the trial. Over the period of time, the courts have explained this concept and now it has attained, more or less, certainty in the field of criminal jurisprudence."
(emphasis supplied)
19. From a reading of the above, the importance of the answers, and the role of the Trial Court to examine the same for the purpose of examining the veracity of the case of the prosecution has been impressed upon. The opening sentence of paragraph no. 21 is a telling statement, regarding the importance and relevance of the answers elicited during the questioning under Section 313 CrPC.
20. The Hon'ble Apex Court, by its earlier judgment in the case of State of U.P. v. Lakhmi, (1998) 4 SCC 336, has been pleased to hold that the use of the words 19 "may be taken into consideration in such enquiry or trial"
amounts to a legislative guideline for the Court to give due weightage to such answers. In paragraph nos. 9 & 10, the Hon'ble Apex Court has held as under :
"9. Sub-section (4) of Section 313 of the Code contains necessary support to the legal position that answers given by the accused during such examination are intended to be considered by the court. The words "may be taken into consideration in such enquiry or trial"
in sub-section (4) would amount to a legislative guideline for the court to give due weight to such answers, though it does not mean that such answers could be made the sole basis of any finding.
10. Time and again, this Court has pointed out that such answers of the accused can well be taken into consideration in deciding whether the prosecution evidence can be relied on, and whether the accused is liable to be convicted of the offences charged against him; vide Sampat Singh v. State of Rajasthan [(1969) 1 SCC 367] ; Jethamal Pithaji v. Asstt. Collector of Customs [(1974) 3 SCC 393 : 1973 SCC (Cri) 958] ; Rattan Singh v. State of H.P. [(1997) 4 SCC 161 :
1997 SCC (Cri) 525]."
21. In the case of Rattan Singh v. State of H.P., (1997) 4 SCC 161, the Hon'ble Apex Court, while examining the relevance of examination of accused under Section 313 CrPC, has been pleased to hold that "examination of the accused under Section 313 of the Code is not a mere formality. Answers given by the accused to the questions put to him during such examination have a practical utility for criminal courts.
Apart from affording an opportunity to the delinquent to explain incriminating circumstances against him, they 20 would help the court in appreciating the entire evidence adduced in the court during trial."
22. The Hon'ble Apex Court in the case of Premchand v. State of Maharashtra, (2023) 5 SCC 522, while examining the scope of sub-section (1) of Section 313 CrPC, has prioritized the necessity to frame relevant questions, and has been pleased to place reliance on a few of its own rulings. In paragraph nos. 13, 14, 15, 16, 17, 18, 19 & 20, the Hon'ble Supreme Court has held as follows :
"13. There is a plethora of judicial pronouncements on consideration of Section 313CrPC, a few of which need to be noted at this stage.
14. A Bench of three Hon'ble Judges of this Court in State of U.P. v. Lakhmi [State of U.P. v. Lakhmi, (1998) 4 SCC 336 : 1998 SCC (Cri) 929] has extensively dealt with the aspect of value or utility of a statement under Section 313CrPC. The object of Section 313CrPC was explained by this Court in Sanatan Naskar v. State of W.B. [Sanatan Naskar v. State of W.B., (2010) 8 SCC 249 : (2010) 3 SCC (Cri) 814] The rationale behind the requirement to comply with Section 313CrPC was adverted to by this Court in Reena Hazarika v. State of Assam [Reena Hazarika v. State of Assam, (2019) 13 SCC 289 : (2019) 4 SCC (Cri) 546] . Close on the heels thereof, in Parminder Kaur v. State of Punjab [Parminder Kaur v. State of Punjab, (2020) 8 SCC 811 : (2020) 3 SCC (Cri) 914] , this Court restated the importance of Section 313CrPC upon noticing the view taken in Reena Hazarika [Reena Hazarika v. State of Assam, (2019) 13 SCC 289 : (2019) 4 SCC (Cri) 546] and M. Abbas v. State of Kerala [M. Abbas v. State of Kerala, (2001) 10 SCC 103 : 2002 SCC (Cri) 1270] .
15. What follows from these authorities may briefly be summarised thus:
15.1. Section 313CrPC [clause (b) of sub-section (1)] is a valuable safeguard in the trial process for the accused to establish his innocence.21
15.2. Section 313, which is intended to ensure a direct dialogue between the court and the accused, casts a mandatory duty on the court to question the accused generally on the case for the purpose of enabling him to personally explain any circumstances appearing in the evidence against him.
15.3. When questioned, the accused may not admit his involvement at all and choose to flatly deny or outrightly repudiate whatever is put to him by the court.
15.4.The accused may even admit or own incriminating circumstances adduced against him to adopt legally recognised defences.
15.5. An accused can make a statement without fear of being cross-examined by the prosecution or the latter having any right to cross-examine him.
15.6. The explanations that an accused may furnish cannot be considered in isolation but have to be considered in conjunction with the evidence adduced by the prosecution and, therefore, no conviction can be premised solely on the basis of the Section 313 statement(s).
15.7. Statements of the accused in course of examination under Section 313, since not on oath, do not constitute evidence under Section 3 of the Evidence Act, yet, the answers given are relevant for finding the truth and examining the veracity of the prosecution case.
15.8. Statement(s) of the accused cannot be dissected to rely on the inculpatory part and ignore the exculpatory part and has/have to be read in the whole, inter alia, to test the authenticity of the exculpatory nature of admission.
15.9. If the accused takes a defence and proffers any alternate version of events or interpretation, the court has to carefully analyse and consider his statements.
15.10. Any failure to consider the accused's explanation of incriminating circumstances, in a given case, may vitiate the trial and/or endanger the conviction.
16. Bearing the above well-settled principles in mind, every criminal court proceeding under clause (b) of sub-section (1) of Section 313 has to shoulder the onerous responsibility of scanning the evidence after the prosecution closes its case, to trace the incriminating 22 circumstances in the evidence against the accused and to prepare relevant questions to extend opportunity to the accused to explain any such circumstance in the evidence that could be used against him. Prior to the amendment of Section 313 in 2009, the courts alone had to perform this task. Instances of interference with convictions by courts of appeal on the ground of failure of the trial court to frame relevant questions and to put the same to the accused were not rare.
17. For toning up the criminal justice system and ensuring a fair and speedy trial, with emphasis on cutting down delays, Parliament amended Section 313 in 2009 and inserted sub-section (5), thereby enabling the court to take the assistance of the Public Prosecutor and defence counsel in preparing such questions [the first part of sub-section (5)]. Ideally, with such assistance (which has to be real and not sham to make the effort effective and meaningful), one would tend to believe that the courts probably are now better equipped to diligently prepare the relevant questions, lest there be any infirmity. However, judicial experience has shown that more often than not, the time and effort behind such an exercise put in by the trial court does not achieve the desired result. This is because either the accused elects to come forward with evasive denials or answers questions with stereotypes like "false", "I don't know", "incorrect", etc. Many a time, this does more harm than good to the cause of the accused.
18. For instance, if facts within the special knowledge of the accused are not satisfactorily explained, that could be a factor against the accused. Though such factor by itself is not conclusive of guilt, it becomes relevant while considering the totality of the circumstances. A proper explanation of one's conduct or a version different from the prosecution version, without being obliged to face cross-examination, could provide the necessary hint or clue for the court to have a different perspective and solve the problem before it. The exercise under Section 313 instead of being ritualistic ought to be realistic in the sense that it should be the means for securing the ends of justice; instead of an aimless effort, the means towards the end should be purposeful. Indeed, it is optional for the accused to explain the circumstances put to him under Section 313, but the safeguard provided by it and the valuable right that it envisions, if availed of or exercised, could prove decisive and have an effect on the final outcome, which would in effect promote utility of the exercise rather than its futility.
19. Once a written statement is filed by the accused under sub-section (5) of Section 313CrPC and the court marks it as an exhibit, such statement must be 23 treated as part of the accused's statement under sub- section (1) read with sub-section (4) thereof. In view of the latter sub-section, the written statement has to be considered in the light of the evidence led by the prosecution to appreciate the truthfulness or otherwise of such case and the contents of such statement weighed with the probabilities of the case either in favour of the accused or against him.
20. This is a case where it does not appear from the records that the written statement (Ext. 96) engaged the attention of both the trial court as well as the High Court. Applying the principles noted above and for the reasons discussed below, there can be no quarrel that non-consideration of Ext. 96, to a limited extent, in relation to recording of conviction and consequently imposition of sentence, has rendered it vulnerable to interference.
(emphasis supplied)
23. From a reading of the above and if read in conjunction with the statement recorded by the accused to Question Nos. 43 & 44, in our prima facie opinion, it was required of the Trial Court to direct further investigation, but it has unfortunately resorted to a convoluted approach by trying to make out a case against the accused by inferring certain facts, which otherwise were required to be demonstrated by the investigator/ prosecution. It has also not deemed it fit to exercise the powers vested in it under Section 319 CrPC. It is beyond the realm of criminal jurisprudence to infer a fact, which is a matter of proof.
24. The very fact that the accused repeatedly questioned the veracity of the seizure by repeatedly asserting that the seizure and the arrest did not take place at the place recorded in the charge-sheet and that all the 24 proceedings were drawn in the Police Station was sufficient for the Trial Court to have called upon the prosecution to place material and demonstrate their claim that the appellant/ convict was detained near the iron bridge, which was about 500 meters from the Tehsil Office, and the said fact could have been easily demonstrated by placing on record the CDRs of the complainant, or the Head of the SOG, and the CDRs of the Dy.S.P./ Area Officer, Ranikhet. The extraordinary delay in conducting the search, that is of nearly 5 ½ hours unexplained delay, creates a ring of truth around the statement of the accused.
25. The fact that, despite repeated assertion of the accused that the proceedings were drawn in the Police Station and he was not arrested at the place mentioned in the complaint and the charge-sheet, it was incumbent on the prosecution to place the best evidence available to demonstrate their case and the truth. It is no more res integra that the endeavor of all Courts is the search for truth and truth alone. Despite being well aware of the claim of the accused, the prosecution has not placed even an iota of material to dispel the doubt. In fact, the statement of the accused before the Court during Section 25 313 CrPC questioning, would discount the presence of the complainant itself and would assert that the vehicle, in which he was a mere passenger, was stopped by the Special Operations Group at a little distance from Bageshwar. The best possible evidence to disprove the same would have been the CDRs. In fact, a determined attempt has been made, and documents have been placed by the accused as Exhibit D1-D4, which clearly goes to show that information regarding the running of the official vehicles have been suppressed, and not provided. It is no more res integra that any circumstance or material, which is in favour of the accused, ought to be appreciated in favour of the accused. Prima facie, the material and evidence on record cast a serious doubt on the prosecution version itself. Neither the prosecution, nor the Court has even deemed it fit to question the persons named by the accused/ appellant, despite a categorical assertion by the accused.
26. The failure to place the best evidence before the Court, i.e. the CDRs and the extracts of the logbook relating to various official vehicles, casts a serious doubt on the veracity and the credibility of the prosecution version, and also raises a question-mark on the 26 creditworthiness of the oral evidence led-in in this regard. The failure of the police to produce the accused before a Gazetted Officer, or a Magistrate, without unnecessary delay, also creates a doubt, regarding the credibility of the prosecution version, and an inference of innocence of the accused can be drawn.
27. For the aforesaid reasons, the Bail Application (IA No. 02/2024) is allowed. The sentence of the appellant/ applicant is suspended. The appellant/ applicant is directed to be released on bail forthwith, if not required in any other case, subject to the appellant/ applicant executing self-bond for a sum of Rs. 25,000/-, and furnishing one solvent surety for the like sum to the satisfaction of the jurisdictional Magistrate.
_______________ G. NARENDAR, C.J.
_____________ ALOK MAHRA, J.
Dt: 26th August, 2025 Rahul 27