Should the court provide copies of questions to be put to accused U/S 313 of CRPC to the public prosecutor and defence counsel and seek their assistance?

22. Before we part with this judgment, we must take a note of sub-section (5) added to Section 313 of CrPC w.e.f. 31st December 2009. Sub-section (5) reads thus:

“313. Power to examine the accused.-

(1) … … …

(2) … … … …

(3) … … … …

(4) … … … …

(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.”

23. In many criminal trials, a large number of witnesses are examined, and evidence is voluminous. It is true that the Judicial Officers have to understand the importance of Section 313. But now the Court is empowered to take the help of the prosecutor and the defence counsel in preparing relevant questions. Therefore, when the Trial Judge prepares questions to be put to the accused under Section 313, before putting the questions to the accused, the Judge can always provide copies of the said questions to the learned Public Prosecutor as well as the learned defence Counsel and seek their assistance for ensuring that every relevant material circumstance appearing against the accused is put to him. When the Judge seeks the assistance of the prosecutor and the defence lawyer, the lawyers must act as the officers of the Court and not as mouthpieces of their respective clients. While recording the statement under Section 313 of CrPC in cases involving a large number of prosecution witnesses, the Judicial Officers will be well advised to take benefit of subsection (5) of Section 313 of CrPC, which will ensure that the chances of committing errors and omissions are minimized.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1471 of 2023

Raj Kumar @ Suman    Vs State (NCT of Delhi).

(Before Abhay S. Oka and Rajesh Bindal, JJ.)

Author: Abhay S. Oka, J.

Dated: May 11, 2023.

Citation: 2023 SCC OnLine SC 609.

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Whether accused can be cited as witness without following procedure of S 306 of CRPC?

The submission made on behalf of the Appellants that the prosecution was entitled to cite the three original Accused as witnesses, in the given fact situation, having regard to larger interest of justice to strengthen the prosecution case against more serious Accused cannot be held to be without substance. This could be done even without recourse to Section 306 Code of Criminal Procedure It is certainly open to the Court to finally decide whether cognizance ought to be taken or not after balancing all the relevant considerations. The decision of the prosecutor to cite them as witnesses does not bind the Court and such decision can be interfered with if interest of justice so requires.

7. In the present case, decision of the High Court has not been arrived at by weighing the interest of justice in having the Appellants as Accused instead of their utility as witnesses. The decision is based on the sole consideration of there being material against them. It was erroneously assumed that without following the procedure of Section 306 Code of Criminal Procedure, an accomplice could not be cited as a witness. Further question, whether rejecting the proposal of prosecution to cite the Appellants as witnesses will jeopardise prosecution case against more serious accused, has not been gone into. Thus, the matter needs fresh consideration on this touchstone.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 939-940, 941-942/2017,

Decided On: 23.08.2017

 Girish Sharma  Vs.  The State of Chhattisgarh and Ors.

Hon'ble Judges/Coram:

A.K. Goel and U.U. Lalit, JJ.

Citation:(2018) 15 SCC192

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What role should court should play in criminal trial?

It is clear that even though the Court is not supposed to assume the role of a referee or an umpire and to allow the trial to develop into a contest between the prosecution and the defence, and even though the Court is not supposed to be silent spectator to the examination-in-chief or cross examination, the Court should not assume the role of prosecution or defence lawyer and put the questions to the witnesses to jeopardise the prosecution case or the defence of the accused.

9. It is true that under section 165 of the Evidence Act ample powers have been given to the Court to have effective and proper control over the trial and Court can ask any question, in any form, at any time. This is an absolute power given to the Court. However, the power has to be used sparingly and only when the circumstances justify its use. From the manner in which the witness is examined by the Court it does not appear that it was necessary for the Court to put so many questions to the witnesses particularly when cross examination was in progress.

Bombay High Court

Ahmed Khan Alikhan Deshmukh vs The State Of Maharashtra & Another on 11 November, 1998

Equivalent citations: 1999 (5) BomCR 158, 1999 BomCR Cri, 1999 (1) MhLj 401

Bench: D Deshpande

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Whether prosecutor can ask about new matters in Re-examination of witness?

In this context, we think it  apt  to  reproduce  some  passages  from
Rammi @ Rameshwar V. State  of  Madhya  Pradesh[28],  where  the  Court  was
dealing with the purpose of re-examination.  After referring to Section  138
of the Evidence Act, the Court held thus:
"There is an erroneous impression that re-examination should be confined  to
clarification  of  ambiguities  which  have  been  brought  down  in  cross-
examination. No doubt, ambiguities can be resolved  through  re-examination.
But that is not the only function of  the  re-examiner.  If  the  party  who
called the witness  feels  that  explanation  is  required  for  any  matter
referred to in cross-examination he has the liberty to put any  question  in
re-examination  to  get  the  explanation.  The  Public  Prosecutor   should
formulate his questions  for  that  purpose.  Explanation  may  be  required
either when the ambiguity  remains  regarding  any  answer  elicited  during
cross-examination or even otherwise. If the  Public  Prosecutor  feels  that
certain answers require  more  elucidation  from  the  witness  he  has  the
freedom and the right to put such questions as he deems necessary  for  that
purpose, subject of course to the control of the court  in  accordance  with
the other provisions. But  the  court  cannot  direct  him  to  confine  his
questions to ambiguities alone which arose in cross-examination.

Even if the Public Prosecutor feels that  new  matters  should  be  elicited
from the witness he can do so, in which case the only  requirement  is  that
he must secure permission of the court. If the court thinks  that  such  new
matters are necessary for proving any material fact, courts must be  liberal
in granting permission to put necessary questions".

 We have reproduced the aforesaid paragraphs  to  highlight  that  when
the prosecution has such a right in the  process  of  re-examination,  as  a
natural corollary, the testimony of a  hostile  witness  cannot  be  brushed
aside.  On the contrary, both the prosecution and the defence can  rely  for
their stand and stance.  Emphasis on re-examination by  the  prosecution  is
not limited to any answer given in the  cross-examination,  but  the  Public
Prosecutor has the freedom and right to  put  such  questions  as  it  deems
necessary to  elucidate  certain  answers  from  the  witness.   It  is  not
confined to clarification of ambiguities, which have been  brought  down  in
the cross-examination.
 IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 554 OF 2012

Vinod Kumar  V State of Punjab                    
 Citation;2015ALLSCR900,AIR2015SC1206,2015CriLJ1442,

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Whether court has duty that full and material facts are brought on record ?

As observed by this Court in the case of Zahira Habibulla Sheikh & anr. vs. State of Gujarat & ors., (2004) 4 SCC 158, the prosecutor who does not act fairly and acts more like a counsel for the defence is a liability to the fair judicial system, and Courts could not also play into the hands of such prosecuting agency showing indifference or adopting an attitude of total aloofness. Court has a greater duty and responsibility i.e. to render justice, in a case where the role of the prosecuting agency itself is put in issue and is said to be hand in glove with the accused, parading a mock fight and making a mockery of the criminal justice administration itself. As succinctly stated in Jennison vs. Baker (All ER p. 1006d) “The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hope.” Courts have to ensure that accused persons are punished and that the might or authority of the State is not used to shield themselves or their men. It should be ensured that they do not wield such powers which under the Constitution have to be held only in trust for the public and society at large. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies, courts have to deal with the same with an iron hand appropriately within the framework of [pic]law. It is as much the duty of the prosecutor as of the court to ensure that full and material facts are brought on record so that there might not be miscarriage of justice.

Supreme Court of India

Patel Maheshbhai Ranchobhai & Ors vs State Of Gujarat on 26 September, 2014

Bench: M.Y. Eqbal, Abhay Manohar Sapre

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Whether court has power to substitute another prosecuting agency after death of complainant?

During the inquiry under Chapter XVIII in respect of offences requiring a person aggrieved, the complainant died after the complaint had been field under s. 198 Cr. P.C. The application for substitution of the complaint was resisted by the accused- appllant, on the ground that only the aggreived person could be the complaint and on the complaint's death , the complaint must be treated as abated. The Magistrate rejected the objection , and the High Court HELD : The objection must be rejected.

Section 198 Cr. P.C. creates a bar which has to be removed before cognisance is taken. Once the bar is removed because the proper person has filed a complaint, the section works itself out. If any other restriction was also there the Code would have said so. ' Not having said so, one must treat the section as fulfilled and worked out. [811 D-E] Unless the Code itself said what was to happen, the power of the Court to substitute another prosecution agency (subject to such restrictions as may be found) under s. 495 of the Code was always available. 

Supreme Court of India

Ashwin Nanubhai Vyas vs State Of Maharashtra & Anr on 10 October, 1966

Equivalent citations: 1967 AIR 983, 1967 SCR (1) 807

BENCH:

HIDAYATULLAH, M.

SIKRI, S.M.

DAYAL, RAGHUBAR

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Difference between plea bargaining, charge bargaining and sentence bargaining

A plea bargain (also plea agreement, plea deal or copping a plea) is an agreement in a criminal case between the prosecutor and defendant whereby the defendant agrees to plead guilty to a particular charge in return for some concession from the prosecutor. This may mean that the defendant will plead guilty to a less serious charge, or to one of several charges, in return for the dismissal of other charges; or it may mean that the defendant will plead guilty to the original criminal charge in return for a more lenient sentence.[1] A plea bargain allows both parties to avoid a lengthy criminal trial and may allow criminal defendants to avoid the risk of conviction at trial on a more serious charge. For example, a criminal defendant charged with a felony theft charge, the conviction of which would require imprisonment in state prison, may be offered the opportunity to plead guilty to a misdemeanor theft charge, which may not carry jail time. In cases such as an automobile collision when there is a potential for civil liability against the defendant, the defendant may agree to plead no contest or "guilty with a civil reservation", which essentially is a guilty plea without admitting civil liability. Plea bargaining can present a dilemma to defense attorneys, in that they must choose between vigorously seeking a good deal for their present client, or maintaining a good relationship with the prosecutor for the sake of helping future clients.[2] In charge bargaining, defendants plead guilty to a less serious crime than the original charge. In count bargaining, they plead guilty to a subset of multiple original charges. In sentence bargaining, they plead guilty agreeing in advance what sentence will be given; however, this sentence can still be denied by the judge. In fact bargaining, defendants plead guilty but the prosecutor agrees to stipulate (ie, to affirm or concede) certain facts that will affect how the defendant is punished under the sentencing guidelines.

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