Questions and answers on law (Part 89)

 Q 1:- In a criminal appeal if it is brought to your notice as sessions judge  that all incriminating questions were not asked to the accused by the trial court, what are the options available to you as an appellate court? 

Ans:- Yes. If in a criminal appeal, it is found that all incriminating circumstances were not put to the accused under Section 313 CrPC, the appellate court must first see whether that omission caused material prejudice or failure of justice; the omission does not automatically vitiate the trial.

30-second answer

If all incriminating circumstances were not put to the accused under Section 313 CrPC, the appellate court has to examine whether prejudice has been caused. Mere omission is not by itself fatal, but if material prejudice or miscarriage of justice is shown, the conviction may be set aside and the matter may be remanded for fresh Section 313 examination or even retrial, depending on the gravity of the defect. If no prejudice is caused, the appellate court may still decide the appeal on merits.”

Options as appellate court

• Ignore the defect if the omitted circumstance is minor and no failure of justice is shown.

• Assess prejudice from the record and hear the appeal on merits.

• Set aside the judgment and remit the matter to the trial court for proper examination of the accused under Section 313 CrPC and fresh decision.

• In serious cases where the omission goes to the root of the prosecution case, order retrial under appellate powers.

Interview line to remember

A simple formula is: “Omission under Section 313 is not automatically fatal; prejudice is the test, and the remedy may be affirmance, remand, or retrial.”

Q 2:- Whether appellate court can ask such questions under section 313 of CRPC to the accused and proceed with the appeal.

Ans:-  If the trial court has failed to put some incriminating circumstances to the accused under Section 313 CrPC, the defect does not automatically vitiate the conviction. As held in Shivaji Sahabrao Bobade v. State of Maharashtra, that it is open to the appellate court to put those circumstances to the accused, or even call upon his counsel to indicate the explanation the accused has. If no plausible explanation is forthcoming and no prejudice is shown, the appellate court may proceed to decide the appeal on merits. 

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