Thursday, 17 September 2015

Whether trial is vitiated if there is error or omission in recording statement of accused U/S 313 of CRPC?

An error or omission for not putting the question while recording the
statement of accused U/Section 313 of the Code of Criminal Procedure,
1973 is not fatal to the prosecution. Said error is curable one and it is open
for the appellate court to remand the matter for limited purpose for
recording the statement of accused U/Section 313 of the Cri.P.C.
[7] In view of the reported decision of Division Bench of this Court,
which is binding on me, I cannot consider the submission of the learned
counsel for the applicant based on decision of Single Judge of Punjab &
Haryana High Court. Hence, contentions and submissions raised by the
learned counsel for the applicant that for non putting the incriminating
circumstances appearing against the accused in 313 Statement, vitiate entire
trial, is rejected.
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY.
BENCH AT AURANGABAD.
CRIMINAL APPELLATE JURISDICTION.
Criminal Revision Application No.63 Of 2001.
Shrirang s/o Dattatraya Wattamwar

V e r s u s
The State of Maharashtra.

Coram : V.M. Deshpande, J.
Date : 8 th July, 2014.
Citation; 2015(3) crimes 408 Bom

On 3rd February, 2001 the learned Sessions Judge, Nanded partly
allowed Cri.Appeal No.29/1995, preferred on behalf of the present applicant
and remanded the matter back for re-trial. Being aggrieved by the said
Judgment and Order, the applicant has filed present Cri.Revn.Appln.
[2] Few facts leading to the present proceedings are as under :-

[i] Present applicant is the Proprietor of M/s. Arun Products,
Kaluji Tekdi, Old Mondha, Nanded. Said firm deals in spices, chilly
powder, turmeric powder and likewise products. Mr. Dastagir
Chandarlal Shaikh, Food Inspector, Nanded visited the said firm on
21st June, 1991 alongwith the panchas and collected the sample in
presence of the applicant. The turmeric powder of which the sample
were taken by the Food Inspector, after following due process it was
sent for its analysis. The required notice U/Section 14(A) of the
Prevention of Food Adulteration Act, 1954 [In short, the P.F.A.Act,
1954] was also given to the present applicant. After receipt of report
from the Public Analyst, the Food Inspector obtained requisite
permission from the competent authority and then filed complaint
against the present applicant in the Court of the Chief Judicial
Magistrate, Nanded for the charges U/Section/s 7(i) read with Section
2 (ia)(a) punishable U/Section 16(1)(a)(ii) of the P.F.A.Act, 1954 and
U/Section 7(v) and for the contravened Rule 44(h) punishable
U/Section 16(1)(a)(i) of the P.F.A.Rules.
[ii] Said complaint was registered in the court of the Chief Judicial
Magistrate, Nanded as Regular Criminal Case No.667 Of 1991. After
full dressed trial, the learned C.J.M., Nanded by his Judgment and
Order dated 17th February, 1995 found the applicant guilty for the
offences, for which he was charged and sentenced him to suffer
Rigorous Imprisonment for one year and to pay fine of Rs.5000/-
[Rs.Five Thousand only] and in default to suffer further Simple
Imprisonment for one year.
[iii] Being aggrieved by the said Judgment and Order, the
applicant has preferred Cri.Appeal No.29 Of 1995 before the Sessions

Court, Nanded. The applicant pointed out before the learned Sessions
Judge that the circumstances appearing against him in the prosecution
case, which are used by the learned Magistrate for passing the order
of sentence after holding him guilty, were not put to him when the
statement of present applicant U/Section 313 of the Code of Criminal
Procedure, 1973 was recorded.
[iv] The learned Sessions Judge found that, there is non compliance
of section 313 of the Code of Criminal Procedure, 1973. On 3rd
February, 2001 the learned Sessions Judge, Nanded partly allowed
Cri.Appeal No.29/1995, preferred on behalf of the present applicant
and remanded the matter back for re trial.
[3] The learned Sessions Judge in my view has rightly rejected the
contention on behalf of the present applicant that for non compliance of
Section 313 of the Code of Criminal Procedure, 1973, entire prosecution
was vitiated. The learned Sessions Judge, partly allowed the Cri.Revn.
Appln. and directed re-trial.
[4] The learned counsel for the applicant submitted that, once the learned
Sessions Judge was of the view that questions were not put to the applicant
while recording his statement U/Section 313 of the Code of Criminal
Procedure, 1973, entire trial was vitiated and the learned Sessions Judge has
committed error in ordering re-trial. The learned counsel further submitted
that, in view of the decision of All India Prevention of Food Adulteration
Journal, XII-1986, page No.576. Mangal Dass V/s. The State of Haryana,
[Punjab & Haryana High Court] entire trial will be vitiated.

[5] Per contra, the learned A.P.P. for the State submitted that, in view of
the reported decision of this Court in case of Chamarsha @ Tiru Lodhi
Koreti V/s. State of Maharashtra. 2002(Cri) Suppl. Bom.C.R., 813, 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.
[6] An error or omission for not putting the question while recording the
statement of accused U/Section 313 of the Code of Criminal Procedure,
1973 is not fatal to the prosecution. Said error is curable one and it is open
for the appellate court to remand the matter for limited purpose for
recording the statement of accused U/Section 313 of the Cri.P.C.
[7] In view of the reported decision of Division Bench of this Court,
which is binding on me, I cannot consider the submission of the learned
counsel for the applicant based on decision of Single Judge of Punjab &
Haryana High Court. Hence, contentions and submissions raised by the
learned counsel for the applicant that for non putting the incriminating
circumstances appearing against the accused in 313 Statement, vitiate entire
trial, is rejected.
[8] In fact, the learned Sessions Judge ought to have remanded the matter
for limited purpose of recording the statement of accused U/Section 313 of
the Code of Criminal Procedure, 1973 however, the learned Sessions Judge
has ordered re-trial. But in absence of any Appeal preferred by the State of
Maharashtra, challenging the correctness of the said Judgment passed by the
Sessions Judge, Nanded, this court in its revisional jurisdiction is not
upsetting the said order of re-trial. Hence there is no merit in the matter.
Hence, I proceed to pass the following order :-

O R D E R
[i] Cri.Revn.Appln. is dismissed.
[ii] The applicant shall appear before the learned Chief
Judicial Magistrate, Nanded on 21st August, 2014.
[iii] The learned Chief Judicial Magistrate, Nanded shall
hold the trial afresh, as directed by the learned Sessions Judge,
Nanded and shall complete the said trial within a period of six
months, looking to the fact that trial is of the year 1991.
[iv] If the applicant fails to appear before the Chief Judicial
Magistrate, Nanded on 21st August, 2014, the Chief Judicial
Magistrate, Nanded shall take all necessary steps to procure the
presence of present applicant.
[v] Rule discharged. Cri.Revn.Appln. dismissed.
Cri.Revn.Appln. dismissed.
(V.M. DESHPANDE, J.)

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