Thursday, 17 September 2015

How irregularity or omission in criminal trial can be corrected?

We are not inclined to accept the statement made by Mr. Daga, that for non-examination of the appellant-accused, the whole trial is vitiated and therefore the judgment and order of conviction and sentence should be quashed and set aside. Every error or omission not in compliance withSection 313, Criminal Procedure Code does not necessarily vitiate the trial. Errors of this type fall within the category of curable irregularities. We do not find that in the facts and circumstances of the case, the appellant-accused would be prejudiced if the matter is remanded to the trial Court, as submitted by Mr. Mirza, the learned A.P.P.
Every irregularity or omission in trial does not vitiate the trial and irregularity can be corrected by remanding the matter back for examination of accused in accordance with law. 
Bombay High Court
Chamarsha @ Tiru S/O Lodhi Koreti vs State Of Maharashtra on 8 October, 2001
Equivalent citations: 2002 (1) MhLj 159
Bench: J Patel, S Shah


1. Chamarsha @ Tiru s/o Lodhi was tried by the Additional Sessions Judge, Gadchiroli for having murdered Baliram s/o Soma Uikey, and thereby came to be convicted for having committed offence under Section 302 and is sentenced to suffer imprisonment for life and to pay fine of Rs. 500/- (Rs. Five Hundred) or in default to suffer further R.I. for 3 months. It is this judgment and order dated 12-3-1996, passed in Sessions Case No. 60/1993, which is under challenge in this appeal.
2. Heard Mr. Daga, the learned Counsel for the Appellant and Mr. Mirza, learned A.P.P. for State.
3. In the course of hearing of the appeal, it has come to our notice that the learned Additional Sessions Judge, Gadchiroli failed to examine the accused on the prosecution closing it's case before the trial Court, and jumped over an important stage in the trial, and after hearing the arguments of the prosecutor and the defence lawyer, pronounced the impugned judgment. The records and proceedings of the trial Court are examined by us, and particularly the Roznama, and we found that on 13-2-1996 the prosecutor filed a pursis (Exh.37) that they are closing their case, and the learned trial Court adjourned the case for arguments on 15-2-1996. On 15-2-1996 the arguments came to be heard and, the case was fixed for judgment on 28-2-1996. On 28-2-1996 as the court was busy the case was adjourned for judgment on 12-3-1996. On 12-3-1996, judgment came to be delivered in open court vide Exh. 40. The accused came to be convicted and sentenced to suffer life imprisonment and to pay fine or Rs. 500/-, in default to suffer R.I. for 3 months.
4. Mr. Daga, the learned Counsel for the appellant submits that in view of the fact that the court has failed to examine the accused under Section 313, Criminal Procedure Code, it would vitiate the trial and therefore, the judgment and conviction be quashed and set aside, and appeal be allowed.
5. On the other hand Mr. Mirza, learned A.P.P. submitted that it appears that the trial Court failed to examine the accused under Section 313, Criminal Procedure Code and this irregularity can be cured by remanding the case to the trial Court for proceeding from the stage after prosecution closed his case, with a direction to the learned trial Court to examine the appellant-accused under Section 313, Criminal Procedure Code and then pronounce the judgment in accordance with law.
6. Mr. Daga, submits that the appellant accused came to be arrested in the case on 2-6-1993 and he is languishing in jail, and therefore no purpose would be served in remanding the matter to the trial Court.
7. It is a settled law that the examination of the accused under Section 313 is not intended to be an idle formality, it has to be carried out in the interest of justice and fair play to the accused. The whole object and purpose is to enable the accused to personally explain all the circumstances, and if the accused has not been given the opportunity to explain any adverse circumstances, it cannot be used as a evidence against him, and therefore, in our opinion the impugned judgment and order of the conviction and sentence will have to be quashed and set aside.
8. We are not inclined to accept the statement made by Mr. Daga, that for non-examination of the appellant-accused, the whole trial is vitiated and therefore the judgment and order of conviction and sentence should be quashed and set aside. Every error or omission not in compliance withSection 313, Criminal Procedure Code does not necessarily vitiate the trial. Errors of this type fall within the category of curable irregularities. We do not find that in the facts and circumstances of the case, the appellant-accused would be prejudiced if the matter is remanded to the trial Court, as submitted by Mr. Mirza, the learned A.P.P.
9. It appears that the learned Additional Sessions Judge, ignored a very important step in the trial, may be due to inadvertence. The learned A.P.P. is not in a position to explain as to why such a mandatory step has been followed by the learned Additional Sessions Judge. It cannot be said that it was due to ignorance, but then in the interest of justice we will have to set right the irregularity, and therefore, we quash and set aside the judgment and order of conviction and sentence and remand the case to the trial Court with a direction that the trial Court would examine the accused under Section 313, Criminal Procedure Code, and then proceed further in accordance with the law, and pronounce judgment in the case. The whole exercise should be done within a period of 4 weeks from the receipt of our order along with the records and proceedings. The appellant-accused if found guilty and is convicted by the learned Additional Sessions Judge, may prefer appeal which shall be immediately taken up for hearing as the matter pertains to the year 1993, and since then the appellant is languishing in jail. The appeal is allowed accordingly.
10. Additional Registrar (Administration) of this Court to forthwith transmit the copy of the judgment of this court along with R & P to the trial Court for taking immediate steps as directed.

11. Appeal allowed.
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