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There Cannot Be A Generalised Presumption Of Prejudice To An Accused Merely By Reason Of Any Omission Or Inadequate Questions Asked: SC

By Harshvardhan Sharma      10 October, 2019 11:11 AM      0 Comments

The Supreme Court on October 4, 2019, in the case of Fainul Khan v. State of Jharkhand and Another, has held that there cannot be a generalized presumption of prejudice to an accused merely by reason of any omission or inadequate questions put to an accused under Section 313 of the Code of Criminal Procedure, 1973.

A Division Bench comprising of Justices Navin Sinha and B.R. Gavai was hearing appeals filed by the appellants against their conviction under Sections 302/149 of the Indian Penal Code 1860, sentencing them to rigorous imprisonment for life, along with conviction under Sections 323/149 and 147 IPC, sentencing them to varied terms of imprisonment under the same.

Learned Senior Counsel Sidharth Luthra, appearing for the appellants, submitted before the court that the appellants have been seriously prejudiced in their defence because proper opportunity to defend was denied under Section 313 of the Code of Criminal Procedure, 1973, as the incriminating questions put to them were extremely casual and perfunctory in barely two pages.

It was also submitted that all relevant questions with regard to the accusations were not put to the appellants, denying them the opportunity to present their defence.

Learned Counsel for the state, on the other hand, submitted that there was no lacunae in the examination of the accused under Section 313 of the Code of Criminal Procedure, 1973. In any event, the appellants have not been able to demonstrate any prejudice. Moreover, this objection cannot be raised at the present belated stage when it had not been raised at any earlier stage, the counsel argued.

In appeal, the apex court placed reliance on a judgment in Suresh Chandra Bahri v. State of Bihar, 1995 Suppl (1) SCC 80, wherein it was observed that “it is no doubt true that the underlying objects behind Section 313 CrPC is to enable that accused to explain any circumstance appearing against him in the evidence and this object is based on the maxim audi alteram partem which is one of the principles of natural justice. It has always been regarded unfair to rely upon any incriminating circumstance. The provisions in Section 313, therefore, make it obligatory on the court to question the accused on the evidence and circumstance appearing against him so as to apprise him the exact case which he is required to meet. But it would not be enough for the accused to show that he has not been questioned or examined on a particular circumstance but he must also show that such non-examination has actually and materially prejudiced him and has resulted in failure of justice. In other words in the event of any inadvertent omission on the part of the court to questions the accused on any incriminating circumstance appearing against him the same cannot ipso facto vitiate the trial unless it is shown that some prejudice was caused to him.”

The court observed that there cannot be a “generalised presumption of prejudice to an accused merely by reason of any omission or inadequate questions put to an accused thereunder.”

In this case, the accused said that the court did not delve into what each individual accused did at the time of the crime.

The Supreme Court concluded that the questions put to the accused were specific and had revealed the common object of the accused to commit the murder. The questions put to an accused depend on the facts and circumstances of each case.

The court said the right of an accused for a fair trial should be balanced with the right of the victim and society at large for justice.

“While the rights of an accused to a fair trial are undoubtedly important, the rights of the victim and society at large for correction of deviant behaviour cannot be made subservient to the rights of an accused by placing the latter at a pedestal higher than necessary for a fair trial,” the court said.

Thus the court dismissed the appeal, inter alia, ruling that there was no irregularity in procedure under Section 313 of the Code of Criminal Procedure, 1973, and as such, no prejudice was caused to the appellants.

[Read Judgment]



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