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SUPREME COURT OF INDIA
T.S. Thakur, Sudhansu Jyoti Mukhopadhaya, JJ.
Fazal Khan - Petitioner
Versus
State of (NCT) of Delhi - Respondent
Special Leave to Appeal (Crl.) No. 527 of 2013 in CRLMC No. 3536 of 2012, Criminal Appeal No. 309 of 2013 (Arising out of S.L.P. (Crl.) No. 527 of 2013).
Decided On : 14-2-2013
Indian Penal Code,1860 - Section 302 - Code of Criminal Procedure, 1973 - Section 311 and 313 - Offence of murder - Evidence in defence - Appellant then appears to have filed a formal application purporting to be one in which he again proposed to examine five witnesses cited by him earlier - In said application appellant explained the reason why he did not opt to lead evidence in defence in statement - Briefly put, explanation was that when his statement was recorded his counsel was not present in Court - Proxy counsel appearing on his behalf did not understand implication of question put to appellant - Trial Court dismissed even this application by its Order dated - Trial Court held that while the accused had right to lead evidence in defence, no explanation was given as to why he did not opt to examine any witnesses when he was asked to lead evidence in defence - Appellant before High Court in Criminal Miscellaneous Case No which has been dismissed by High Court as noticed above - High Court has taken the view that appellant having made a statement declining an opportunity to lead evidence in defence was not entitled to go back on that statement – Held, reason for making of statement has been explained by appellant in application which in Court view ought to have been accepted and appellant allowed to examine witnesses cited in list - It is important to note that co-accused in the case had been allowed to lead evidence in defence and on date appellant made application seeking permission to file list of witnesses or application for permission to adduce evidence as also on date said applications were dismissed by Trial Court, defence evidence of co-accused was still being recorded - Learned counsel for appellant submits that although appellant is in jail and so is co-accused he shall ensure that dasti summons are taken by appellants and served upon witnesses - He submitted that Trial Court could post case on any two dates of hearing to conclude evidence of defence witnesse - Court accordingly direct that Trial Court shall issue dasti summons to pairokar representing appellant accused and grant opportunities to appellant for examination of witnesses cited by him - Appeals allowed.
Certainly. Based on the provided legal document, here are the key points:
The appellant was charged with an offence under Section 302 of the Indian Penal Code and was facing trial along with co-accused (!) .
During the trial, after the prosecution evidence, the appellant's statement was recorded under Section 313 of the Criminal Procedure Code, where he declined to lead any evidence in his defence, citing the absence of his counsel and misunderstanding of the implications (!) (!) .
The appellant later filed a list of witnesses and sought permission to examine them, which was initially rejected by the trial court on the grounds that he had not opted to lead evidence in his statement and had not filed a proper application for examination of witnesses (!) (!) .
The appellant also filed an application under Section 311 of the Criminal Procedure Code, explaining the reasons for not leading evidence earlier, which was dismissed by the trial court (!) .
The High Court dismissed the appellant's challenge to these orders, holding that the appellant could not go back on his earlier statement declining to lead evidence (!) .
The Supreme Court observed that the reasons provided by the appellant for not leading evidence earlier, including the absence of his counsel and misunderstanding, should have been accepted, and that denying him the opportunity to examine witnesses would result in a miscarriage of justice (!) (!) .
The Court emphasized that the right to lead defence evidence is a fundamental aspect of a fair trial and cannot be denied solely based on a prior statement under Section 313, especially when the reasons for not leading evidence are adequately explained (!) .
The Court noted that the co-accused had been permitted to lead evidence, and at the time the appellant sought to do so, the defence of the co-accused was still being recorded, indicating that allowing the appellant to examine witnesses would not unduly prolong the trial (!) .
The Supreme Court set aside the orders of the trial court and the High Court, directing that the appellant's list of witnesses be taken on record and that the witnesses be summoned and examined (!) .
The Court also directed that, despite the appellant being in jail, the trial court shall issue dasti summons to the appellant's representative and provide opportunities for the appellant to examine his witnesses, with the trial court having the discretion to schedule the hearing accordingly (!) .
The appeal was allowed, emphasizing the importance of the appellant's right to lead defence evidence in the interest of justice (!) .
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ORDER :
Leave granted.
2. This appeal arises out of an Order dated 19th October, 2012, passed by the High Court of Delhi whereby Criminal Miscellaneous Case No. 3536 of 2012 and Criminal Miscellaneous Application No. 17497 of 2012 have been dismissed and the order passed by the Trial Court refusing permission to the appellant to lead evidence in defence affirmed. The appellant is facing trial for the alleged commission of an offence punishable under Section 302 of the Indian Penal Code together with one Parmod @ Sunny. Upon conclusion of the prosecution evidence, statements of both the accused persons were recorded under Section 313 of Code of Criminal Procedure, 1973 [for short, `Cr.P.C.'] on 30th July, 2012. In answer to one of the questions put to the appellant in the course of that statement, viz, whether he wished to lead any evidence in defence, the appellant appears to have answered in the negative. The other accused person, namely, Parmod @ Sunny, however, appears to have answered the question in the affirmative and was allowed to file a list of witnesses. Six days after the statement of the appellant was recorded under Section 313 Cr.P.C., the appellant filed a list of witnesses on 6th August, 2012, in which he proposed to examine as many as five witnesses, named in the said list and prayed for issue of summons to the said witnesses.
3. That application was considered by the Trial Court and rejected by its Order dated 15th September, 2012, primarily on the ground that the appellant had not opted to lead evidence in defence in his statement under Section 313 Cr.P.C. and that since no separate application had been filed seeking permission to examine any witnesses, the list-cum-application filed by him for summoning of the witnesses was not tenable.
4. The appellant then appears to have filed a formal application purporting to be one under Section 311 Cr.P.C., in which he again proposed to examine five witnesses cited by him earlier. In the said application, the appellant explained the reason why he did not opt to lead evidence in defence in the statement under Section 313 Cr.P.C. Briefly put, the explanation was that when his statement was recorded under Section 313 Cr.P.C., his counsel was not present in the Court. The proxy counsel appearing on his behalf did not understand the implication of the question put to the appellant. The appellant, therefore, was under a handicap and unassisted by his counsel, stated that he did not wish to lead any evidence in defence. The Trial Court dismissed even this application by its Order dated 20th September, 2012. The Trial Court held that while the accused had the right to lead evidence in defence, no explanation was given as to why he did not opt to examine any witnesses when he was asked to lead evidence in defence.
5. The dismissal of the application was then assailed by the appellant before the High Court in Criminal Miscellaneous Case No. 3536 of 2012, which has been dismissed by the High Court, as noticed above. The High Court has taken the view that the appellant having made a statement declining an opportunity to lead evidence in defence was not entitled to go back on that statement. The High Court also felt that the appellant was trying to derail the trial in the guise of a prayer to lead evidence in defence.
6. We have heard Mr. Gurbaksh Singh, counsel appearing for the appellant and Mr. K. Radhakrishnan, learned senior counsel appearing for the State. In our view both the Trial Court as also the High Court fell in error in declining the prayer made by the appellant. It is not in dispute that on 30th July, 2012, the date when the statement of the appellant was recorded under Section 313 Cr.P.C., his counsel was not present in the Court. The presence of Avneet Kaur, proxy counsel is recorded in the interim order passed by the Trial Court on that date. The explanation offered by the appellant for his making the statement that he did not wish to lead evidence in defence, therefor
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