The Jammu & Kashmir High Court has held that in the absence of any prejudice to the accused or demonstrated failure of justice, omission to record his statement under Section 242 of CrPC[J&K] cannot be held to be fatal to the validity of the trial.
The provision stipulates that the particulars of the offence alleged against the accused are required to be stated to him and he would be asked if he has any cause to show cause as to why he should not be convicted.
Justice Sanjeev Kumar noted that omission to record the statement of accused under Section 242 of the Code during trial is a "mere irregularity", curable under Section 537 of the Code, unless such irregularity has occasioned a failure of justice. The Court noted,
"The petitioner has not been able to demonstrate as to how omission by the trial Court to record his statement under Section 242 of the Code has occasioned any failure of justice or that the failure of the trial court to record his statement under Section 242 of the Code has caused any prejudice to him."
The petitioner is an accused in a complaint filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881. When the trial court took up the complaint about final disposal after both sides had adduced their evidence, it was found that at the time of commencing, the trial statement of the accused under Section 242 of the Code of Criminal Procedure had not been recorded.
The counsel for the petitioner submitted that the accused's statement cannot be recorded when the trial has already reached its final stage and hence, the trial court has no option but to dismiss the complaint.
On the other hand, the counsel appearing for the respondent submitted that omission pointed out could not be made a ground for dismissal of the complaint and acquittal of the petitioner otherwise than on merits.
The trial court held that the failure to record the accused's statement under Section 242 was a curable defect. The statement of the accused could still be recorded before the matter is taken up for final consideration, accordingly, fixed the complaint about recording statement of the accused-petitioner.
Assailing the above order and a subsequent order of the Revision Court taking the same view, the petitioner approached the High Court.
At the outset, the High Court noted that since the accused participated in the trial and contested the same on merits, non-recording of statement under Section 242 of the Code has not caused any prejudice to him. It observed that in a case where the accused decides to contest the accusation, recording of statement under Section 242 "pales into insignificance".
"It is true that recording of statement under Section 242 of the Code is an important aspect of trial in summons cases and it provides an opportunity to the trial Court to terminate the proceedings at its inception, if accused admits that he has committed the offence of which he is accused. However, where the accused does not admit the accusation, the trial Court shall proceed and hear the complainant and take all such evidence, as may be produced in support of the prosecution. The trial Court shall also hear the accused and take all such evidence as he produces in his defence.
In the instant case, the trial Court at the relevant point of time omitted to record the statement of the accused-petitioner under Section 242 of the Code. It proceeded to record the evidence of the complainant and the evidence of the accused in defence. Never before the trial Court, the petitioner pointed out, nor he ever raised any objection in this regard, the High Court noted.
Moreover, it observed that an omission to record statement under Section 242 CrPC is attributable to the Court and no prejudice on account of such omission can be caused to the complainant.
It discussed the maxim "'actus curiae neminemgravabit", meaning that "the act of Court shall prejudice no one", as fully attracted in the instant case. It noted while dismissing the revision plea,
"Omission to record statement under Section 242 of the Code is attributable to the Court, and no prejudice on account of such omission can be caused to the complainant. If that be the position, it does not lie in the mouth of the petitioner that the omission by the trial Court to record his statement under Section 242 of the Code has vitiated the trial and that he is entitled to acquittal in the mater."
Case Title: Abdul Majeed Dhar v. Javed Ahmed Bhat
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