Failure To Question Accused U/S 313 Cr.P.C. Vitiates Entire Proceedings: Kerala High Court

The Kerala High Court on Monday laid down that the failure to question an accused under Section 313 (1) (b) of Cr.P.C. would vitiate the entire proceedings. 

Section 313 (1)(b) states that "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 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".

Justice C.S. Dias, explained that the intent of the provision is to align with the principles of natural justice, particularly that of 'audi alteram partem' which provides that both sides must be heard. 

"...otherwise, the inculpatory materials and circumstances of the exhortation not put to the accused under Section 313 cannot be used against him. Even though it is by now settled, the failure to put the incriminating circumstances to the accused may not ipso - facto vitiate the entire trial, it can be established that the non-compliance of the mandate of the provision would vitiate the proceedings from the stage of Section 313 of the Code," the Court observed.

The revision petitioner had been accused of committing the offence under Section 138 of the Negotiable Instruments Act (NI Act), on account of the cheques presented by him to the de facto complaianat from wom he had borrowed Rs.10 Lakhs, being dishonoured due to 'insufficient funds'. 

During the trial in which the power of attorney holder of the complainant had also been examined, the revision petitioner pleaded not guilty to the charges against him.  It is alleged that the Magistrate had convicted and sentenced the revision petitioner without questioning him under Section 313 (1) (b) Cr.P.C. The Appellate Court also confirmed the conviction but modified the substantive sentence imposed by the Magistrate. 

The present revision pleas were filed questioning the legality and correctness of the same. 

The counsel for the revision petitioner argued that Section 313 Cr.P.C. is an indefeasible right, which had not been complied with in the present case. It was thus submitted that the entire proceedings were vitiated, and the accused revision petitioner had to be acquitted. It was further argued that the power of attorney holder of the complainant was ignorant of the alleged transaction, and that there was a lack of pleading in the complaints regarding the latter's knowledge of the transaction. 

The Court at the very outset, perused Section 313(1)(b) Cr.P.C. which makes it obligatory for every Court to question the accused generally, in an inquiry or trial, to enable the him to explain the circumstances appearing against him in the evidence, after the witnesses for the prosecution have been examined and before the accused is called upon to let his defence. 

Relying upon decisions such as Shobhit Chamar & Anr v. State of Bihar (1989), Alister Anthony Pareira v. State of Maharashtra (2012), Nar Singh v. State of Haryana (2015), and so on, the Court observed that the said provision was to be interpreted to the advantage of the accused, and to enable the Court to arrive at the correct conclusion. 

"Viewed in the above factual and legal background, especially when there has been a denial of a fair opportunity to revision petitioner/accused to explain the incriminating circumstances appearing in the evidence against him and other grounds raised in the memorandums, this Court is of the firm view that the failure on the part of the learned Magistrate in not questioning the accused under Section 313 (1) (b) of the Code has resulted in miscarriage of justice, which warrants interference by this Court," it found. 

The impugned decisions of the Courts below were thus set aside, and the complaints were remitted to the Trial Court to the stage of questioning of the accused under Section 313 (1)(b). The Court further directed that the complaints ought to be decided afresh from the said stage, upon eliminating any prejudice to the revision petitioner.

The revision petitions were thus disposed of. 

Counsel for the Revision Petitioner: Advocates T. Madhu, and K.V. Binod

Counsel for the Respondents: Public Prosecutor Seetha S., and Advocates N. Deepa, Blaze K. Jose, and B. Bindu

Citation: 2023 LiveLaw (Ker) 563

Case Title: Raju J. Vylattu v. P.V. Alexander & Anr. and connected matter 

Case Number: CRL.REV.PET NO. 3007 OF 2011 and CRL.REV.PET NO. 3008 OF 2011

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