A trial court must allow an accused to explain evidence against them before determining guilt and sentencing, ensuring procedural fairness as mandated under Section 313 Cr.P.C.

ORDER :

1. The petitioner was tried and ultimately convicted for committing an offence under Section 138 of the N.I. Act vide judgment dated 18.09.2021 passed by learned Special Judicial Magistrate (NI Act Cases) No.5, Udaipur.

2. Challenging the aforesaid judgment, he preferred an appeal before the Appellate Court bearing Case No.85/2023 and vide judgment dated 19.07.2023, the learned Appellate Court decided the appeal observing that the explanation of the petitioner under Section 313 of the Cr.P.C. was not sought so also that the learned trial Court was not supposed to inflict fine of Rs.4,00,000/- and thus it opt to remadn the matter back to the learned trial Court, however, a flagrant error has been committed by giving the direction that the petitioner shall be heard only on the point of sentence. The said judgment dated 19.07.2023 is under assail before this Court.

3. I have heard learned counsel for the parties and gone through the judgment dated 19.07.2023.

4. This Court is of the view that when the learned trial Court failed to seek an explanation from the accused under Section 313 Cr.P.C. and the accused’s stance could not be brought on record before finding his guilt and when on this count the learned Court of Appeal decided to remand the matter back to the learned trial Court for ratification of the judgment then if that the Court was obligated to hear the accused not only on the question of sentence but also on the point of guilt also in light of the fresh material in the form of explanation under Section 313 Cr.P.C..

5. By not doing so, an error of law has indeed been committed. The proceeding of Section 313 Cr.P.C. are not an empty formality; rather, this stage allows the entire evidence presented by the prosecution to be put before the accused, who is then expected to explain the circumstances brought by the prosecution. After the explanation is given and any evidence in defense is presented, the trial court is required to hear the parties on the question whether the material brought on record is sufficient to establish the guilt of the accused. In this process, it is imperative for the trial Court to consider the explanation of the accused given against the material of the prosecution. After hearing the parties if the trial Court held the accused guilty then as per the mandate of law, the accused must be heard on the question of sentencing. Remanding the matter back solely to record the statement of the accused under Section 313 Cr.P.C. as well as for hearing on the legality of the imposition of fine, but restricting the hearing only to the point of sentence, is not in consonance with the spirit of the law. Therefore, to this extent, the appellate judgment is not sustainable in the eyes of law.

6. Accordingly, the revision petition deserves to be and is hereby allowed. The impugned judgment dated 19.07.2023, passed by the learned Court of Appeal in Sessions Case No.85/2023, is hereby quashed and set aside but limits the hearing of an accused to the point of sentence only. The said order is modified and it is directed that the learned Trial Court shall examine the petitioner under Section 313 Cr.P.C. and in that process, he shall also be asked whether he would wish to adduce evidence in defence and if the answer is in affirmative, then he shall be given liberty in accordance with procedure of the Code. After doing so, the parties shall be heard on merits and then only the learned Trial Court would pass a fresh judgment whether the prosecution succeeded in bringing home the guilt of the accused or not. Only in the event of a definite