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2007 Supreme(Del) 2607
2008 CRI. L. J. 1440
S. RAVINDRA BHAT, J.
Ranjan Dwivedi and Anr.
Versus
C.B.I. Thr. The Director General.
C.R.P. Nos. 142, 143 and 180 of 2007 and Cri M. A. No. 2835 of 2007
Decided On:- 15 -11 -2007.
R. S. Sharma, Feroze Ahmed, Arvind Kumar, Arvind K, Tewari, for Petitioners; R. M. Tewari, for Respondents.
The examination of the accused under Section 313 of the Criminal Procedure Code is for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him and embodies the fundamental principle of 'Audi Alteram Partem'. The provision is mainly intended to benefit the accused and should not be used to prejudice or harass the accused.
Headnote:
Section 313 - Criminal Procedure Code - 313, 362 - The court examined the accused under Section 313 of the Criminal Procedure Code after the prosecution evidence was closed and before the accused was called on for his defense. The court also considered the provisions of Section 362 of the Criminal Procedure Code, which states that once a judgment or order disposing of a case is signed, it cannot be altered or reviewed except for clerical or arithmetical errors. The court held that the examination of the accused under Section 313 is for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him and embodies the fundamental principle of 'Audi Alteram Partem'. The court also emphasized that the provision is mainly intended to benefit the accused and should not be used to prejudice or harass the accused. The court further directed the trial court to complete the questioning of the accused within 3 months and commence the examination of defense witnesses for other accused facing conspiracy charges, following the sequence indicated in the directions to avoid prejudice to the accused.
Fact of the Case:
The case involved the examination of the accused under Section 313 of the Criminal Procedure Code after the prosecution evidence was closed and before the accused was called on for his defense. The accused raised objections to the request of the Central Bureau of Investigation (CBI) to put incriminating circumstances to him, and the court eventually allowed the CBI's application. The accused filed applications for modifications/review of the order, but they were dismissed by the court.
Finding of the Court:
The court found that the examination of the accused under Section 313 is for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him and embodies the fundamental principle of 'Audi Alteram Partem'. The court also emphasized that the provision is mainly intended to benefit the accused and should not be used to prejudice or harass the accused. The court directed the trial court to complete the questioning of the accused within 3 months and commence the examination of defense witnesses for other accused facing conspiracy charges, following the sequence indicated in the directions to avoid prejudice to the accused.
Issues: The main issue was the interpretation of Section 313 of the Criminal Procedure Code and whether the court can recall the accused for putting forward additional queries or 're-examination' under Section 313, after having gone through the exercise in an earlier part of the trial.
Ratio Decidendi: The court held that the examination of the accused under Section 313 is for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him and embodies the fundamental principle of 'Audi Alteram Partem'. The court also emphasized that the provision is mainly intended to benefit the accused and should not be used to prejudice or harass the accused. The court further directed the trial court to complete the questioning of the accused within 3 months and commence the examination of defense witnesses for other accused facing conspiracy charges, following the sequence indicated in the directions to avoid prejudice to the accused.
Final Decision: The revision petitions were dismissed, but subject to the directions to the trial court to complete the questioning of the accused within 3 months and commence the examination of defense witnesses for other accused facing conspiracy charges, following the sequence indicated in the directions to avoid prejudice to the accused.
ORDER :- In these revisional proceedings, under Section 397, Criminal Procedure Code ("Cr. P. C."), the petitioners impugn orders of the Special Judge, dated 27-2-2007 (which directed recording of the statement under S. 313, Cr. P. C.). By the order dated 6-3-2007, the application to recall the first impugned order was rejected. The third order under challenge is dated 21-3-2007.
2. The facts necessary to decide the proceedings are that due to a bomb explosion at Samastipur Railway Station, at 6.30 p.m. on 2-1-1975 Shri L. N. Mishra, the then Railway Minister sustained serious injuries. He expired on 3-1-1975 in the morning at 9 a.m. at Danapur, Bihar. The matter was investigated initially by local police, C. I. D. and later by CBI. A few persons earlier arrested were discharged. Two of them made confessional statements and one was recorded under S. 164, Cr. P. C. The CBI gave them a clean chit. In June, 1975 internal Emergency was imposed and the Ananda Marg sect was banned. The case was later transferred for trial to Delhi. As of today four persons i.e. Santoshanand, Sudevanand, Gopal Ji and Ranjan Dwivedi are accused, and are facing trial.
3. The prosecution evidence was closed on 16-4-1986. Thereafter, the accused wanted statements of certain witnesses to be recorded as Court witnesses who, it was alleged, were deliberately left out by the prosecution agency i.e. CBI. The controversy reached the Supreme Court, which by judgment and order dated 17-11-1992 decided Criminal Appeal Nos. 698-699 of 1992. The appeals of the applicant-accused persons were partly allowed, and the following directions were issued :
"Instead we hold that it will be open to the Additional Sessions Judge to decide whether or not he would like to examine all or any of those persons as Court witnesses at any stage after the statements of the accused have been recorded under S. 313 of Code, that is to say, that it may come to that conclusion even prior to the accused being called upon to enter upon their defence."
4. It is alleged that the above order held that accused should not be robbed of their right to move the Court at the stage of Section 232 of the Cr. P. C. From 10-1-1994 the Trial Court started recording statement of accused under Section 313 of Cr. P. C. Ranjan Dwivedi, one of the revisionists, was examined in the end and his statement was closed on 17-12-2004. The trial Court started recording evidence of the Court witnesses from 13-5-2005 and the last witness Shri Arun Kumar Mishra appeared on 10-1-2007, when his examination was deferred till the time cassette was not repaired. However, in order to facilitate the trial, DW-1 was examined and completed on 19-1-2007. The revisionist, Shri Ranjan Dwivedi filed an application under Section 232, Cr. P. C. on 23-1-2007. The Trial Court noted this in the order dated 8-2-2007. According to the trial Court, entering into the defence was conditional and subject to the right reserved by Ranjan Dwivedi for moving an application under Section 232, Cr. P. C. The trial Court by its order allowed the hearing of the application under Section 232, Cr. P. C. and fixed 14-2-2007 for the purpose.
5. On 14-2-2007 an application was moved by CBI for recording statement of Ranjan Dwivedi under Section 313, Cr. P. C. relating to eight witnesses. It is averred that the said 8 witnesses were examined in 1982-1983; PW-5 was examined on 24-3-1982, PW-6 from 26-3-1982 to 7-4-1982, PW-9 from 21-4-1982 to 22-4-1982, PW-30 on 25-8-1982, PW-40 on 10-9-1982, PW-71 on 16-2-1983, PW-111 from 26-5-1983 to 29-7-1983 and PW-115 on 4-8-1983 were examined. The trail Court by the first impugned order dated 27-2-2007 directed recording of the statement under S. 313, Cr. P. C. An application to recall this order was made by the accused.
6. By order dated 6-3-2007 the Trial Court dismissed the application of the accused for recall of its previous order relating to recording of statement under Section 313. Both the orders are under ch
