S.313 CrPC | Accused Should Be Given Opportunity Of Personally Explaining Any Circumstances Appearing In Evidence Against Him: Calcutta HC

The Calcutta High Court on Friday observed that while examining an accused under Section 313 of the CrPC, the prosecution is under a mandatory obligation to give the accused an opportunity to personally explain any circumstances appearing in the evidence against him. Justice Moushumi Bhattacharya also placed reliance on the Supreme Court judgment in Maheshwar Tigga v. State of Jharkhand wherein the Apex Court had held that the circumstances not put to an accused under section 313 of the CrPC cannot be used against him and must be excluded from considerations. "Section 313 of the Cr.P.C. mandates that the accused shall have the opportunity of personally explaining any circumstances appearing in the evidence against him. In Maheshwar Tigga vs State of Jharkhand; (2021) 1 SCC (Cri) 50 the Supreme Court reaffirmed that the circumstances not put to an accused under section 313 of the Cr.P.C. cannot be used against him and must be excluded from considerations. The Supreme Court further went on to hold that in a criminal trial, the importance of the questions put to an accused are basic to the principles of natural justice as it provides him the opportunity not only to furnish his evidence, but also to explain the incriminating circumstances against him and further that a probable defence raised by an accused is sufficient to rebut the accusation without the requirement of proof beyond reasonable doubt", the Court underscored. The Court was adjudicating upon an appeal preferred against a judgment dated December 19, 1998, wherein the appellant had been convicted under section 7 (1) (a) (ii), of the Essential Commodities Act, 1955 and paragraph 12 of the West Bengal Kerosene Control Order, 1968. In the instant case, the defacto complainant had conducted a raid at the shop cum godown of the appellant who was a dealer of kerosene oil. The stock -cum- purchase register revealed that on April 4, 1986, the opening balance of kerosene oil was 3570 liters but upon measurement 3025 liters of kerosene oil was found to be present in the appellant's shop cum godown. Thus, as per the complaint lodged there was a deficit of 545 liters of kerosene oil.The Court noted that in the instant case while examining the appellant under section 313 of the CrPC, the appellant had answered in question no. 9 that there was no deficit of kerosene oil found in his shop cum godown. However, the prosecution had not sought any explanation about this statement from the appellant."The dictum in Maheshwar Tigga applies squarely to the facts of the present case and the prosecution was under an obligation to seek for an explanation from the appellant with regard to there being no deficit of kerosene oil found in the appellant's shop", the Court underscored. Upon perusal of the record, the Court observed that it appears that there are several reasons for disbelieving the case made out by the prosecution. The Court noted that the concerned Trial Court had failed to consider that the appellant had a separate godown which is situated around 100 yards from the shop-room of the appellant and hence it was possible that the appellant stored kerosene oil in the godown. Furthermore, it was also taken into consideration that the Trial Court had failed to consider the fact that the kerosene oil was not measured in front of the seizure witnesses."The impugned judgment does not taken into account factual deficiencies in the case made out by the prosecution as stated above. The evidence of the independent seizure witnesses, who turned hostile was a significant fact which should have been considered by the Trial Court. The evidence of these witnesses with regard to the appellant having a separate godown was a vital fact which was not considered either by the prosecution or the Trial Court", the Court observed further. Justice Bhattacharya further opined that the lacunae in the form of the examination of the appellant under section 313 of the CrPC and the crucial fact of the appellant's license not being suspended or canceled under the West Bengal Kerosene Control Order persuade this Court to hold that there are enough grounds for interfering with the impugned judgment.Accordingly, the Court held that the conviction of the accused under section 9 (ii) of The Essential Commodities Act, 1955 - punishment for making a false statement in any book, account or record or a declaration about any document which a person required to maintain - is not borne out from the reasons recorded in the impugned judgment.Setting aside the impugned order, the Court ordered, "For the above reasons, this court finds no justification to convict and sentence the appellant under section 9 of The Essential Commodities Act and paragraph 12 of the West Bengal Kerosene Control Order. C.R.A 6 of 1989 is accordingly allowed. The impugned judgment dated 09.12.1988 is set aside and the order of conviction of the same date passed by the Judge, Special Court (E.C. Act), Midnapore is also set aside."Case...

S.313 CrPC | Accused Should Be Given Opportunity Of Personally Explaining Any Circumstances Appearing In Evidence Against Him: Calcutta HC

Aaratrika Bhaumik

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