# Naththan Lal and another v. State of U.P. and another

- **Citation:** (2010) 2 ILRA 536
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-05-26
- **Case number:** Criminal Revision No. 113 of 2010
- **Bench:** S.N.H. Zaidi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naththan-lal-and-another-v-state-of-u-p-and-another-41624
- **Pages:** 4

## Headnote

Code
of
Criminal
Procedure-Criminal
Revision-against order of remand by
Appellant court-on ground no sufficient
compliance of mandatory provision of
Section 313 Cr.P.C.-held-if the Trial
Court fails to properly comply
the
statutory provision-Appellate court acted
well within power-can not be interfered
under revisional justification.

Held: Para 10

The benefit of the above observation of
the Apex Court can not be extended to
the revisionists because, firstly, the ratio
of the case is that non compliance of
section 313 Cr.P.C. can be objected only
by
the
accused
and
not
by
the
complainant, and secondly, in this case it
is the accused revisionists who are
complaining
about
the
improper
compliance of section 313 Cr.P.C. and
not the complainant. Moreover, under
clause (b) of sub-section (1) of section
313 Cr.P.C., it is mandatory for the Court
in every inquiry or trial to put questions
to the accused to enable him personally
to explain any circumstance that has
appeared in the evidence against him
after the prosecution witnesses are
examined and before the accused is
called on for his defence, and if the Court
fails
to
properly
comply
with
this
statutory
requirement,
the
appellate
court is well within its powers to remand
the case to the trial court for proper
compliance of its statutory duty in order
to secure the ends of justice.
Case law discussed:
AIR 1962 SC 1239, 2008(62) ACC 669,
2000(41) ACC 1013.

## Text

536 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
the court cannot close its doors in
discharge of its constitutional obligations.

12. It is not uncommon in this
country where statutory provisions are
abused but it is not because the courts are
not discharging their obligations properly
but it is because of the failure on the part
of the administration. They have to punish
such persons who are indulged in antisocial activities. The law has given ample
power to meet out such contingencies and
it is the duty of the bureaucracy to give
its effect and check the abuse of the
statutory provisions. They cannot shift
their burden on others.

13. In view of above, we do not find
any reason to interfere with the impugned
award which does not seem to suffer from
any impropriety or illegality. The appeal
is devoid of merit. It is accordingly
dismissed.
---------
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 26.05.2010

BEFORE
THE HON'BLE S.N.H. ZAIDI, J.

Criminal Revision No. 113 of 2010

Naththan Lal and another ...Petitioners
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Mohammad Naseerullah

Counsel for the Respondent:
G.A.

Code
of
Criminal
Procedure-Criminal
Revision-against order of remand by
Appellant court-on ground no sufficient
compliance of mandatory provision of
Section 313 Cr.P.C.-held-if the Trial
Court fails to properly comply
the
statutory provision-Appellate court acted
well within power-can not be interfered
under revisional justification.

Held: Para 10

The benefit of the above observation of
the Apex Court can not be extended to
the revisionists because, firstly, the ratio
of the case is that non compliance of
section 313 Cr.P.C. can be objected only
by
the
accused
and
not
by
the
complainant, and secondly, in this case it
is the accused revisionists who are
complaining
about
the
improper
compliance of section 313 Cr.P.C. and
not the complainant. Moreover, under
clause (b) of sub-section (1) of section
313 Cr.P.C., it is mandatory for the Court
in every inquiry or trial to put questions
to the accused to enable him personally
to explain any circumstance that has
appeared in the evidence against him
after the prosecution witnesses are
examined and before the accused is
called on for his defence, and if the Court
fails
to
properly
comply
with
this
statutory
requirement,
the
appellate
court is well within its powers to remand
the case to the trial court for proper
compliance of its statutory duty in order
to secure the ends of justice.
Case law discussed:
AIR 1962 SC 1239, 2008(62) ACC 669,
2000(41) ACC 1013.

(Delivered by Hon'ble S.N.H. Zaidi, J.)

1. This revision has been directed
against the common judgment and order
dated 10.2.2010 passed by the Special
Additional Sessions Judge, Pratapgarh in
Criminal Appeal Nos. 26 of 1998 and 28
of 1998, whereby the appeals were
allowed and the judgment and order dated
16.9.1998
of
the
Chief
Judicial
Magistrate,
Pratapgarh,
passed
in
Criminal Case No. 1558 of 1993 Brahm
2 All] Naththan LAl and another V State of U.P. and another
537
Dutta vs. Sheetla Prasad Maurya and
others was set aside and the case was
remanded to the trial Court for recording
the statement of accused appellants under
section 313 of the Code of Criminal
Procedure, 1973, for short Cr.P.C, and for
deciding the case afresh on merits after
giving them opportunity to adduce
evidence in defence.

2. The brief facts giving rise to this
revision are that a complaint case no.
1558 of 1993 was instituted by opposite
party no. 2 against the revisionist and four
others, who were summoned to face the
trial by the Magistrate. On the basis of
evidence recorded under section 244
Cr.P.C., the accused persons were tried
for the offences of sections 218 and 120B I.P.C. During the trial one accused died.
The
trial
Magistrate
acquitted
two
accused and convicted the remaining
three, including the revisionists, under the
said sections by judgment and order dated
16.9.1998.
The
convicted
persons,
preferred appeals against the same.
During the appeals, one of the appellants
died. The learned lower appellate court
allowed both the appeals by a common
judgment and after setting aside the
impugned judgment and conviction order
remitted the case to the trial court with the
directions as aforesaid.

3. I have heard learned counsel for
the revisionists, learned A.G.A. for the
State and perused the record.

4. One of the grounds that was
mainly raised before the lower appellate
court and found favour by it is that the
trial court had not properly complied with
the requirement of section 313 Cr.P.C. as
the questions relating to incriminating
circumstances that had appeared against
the accused persons in the prosecution
evidence were not put to them to enable
them to explain about those circumstances
and thus such evidence could not be read
against the accused persons. It appears
that the trial Court had only put the
following three questions to the accused
persons under section 313 Cr.P.C.,
namely:-

"1:- You have heard the statement of the
witnesses. Why they are deposing against
you?

2:- Do you want to give evidence in
defence?

3:- Do you want to say anything more?."

5. The Supreme Court in the case of
Ajmer Singh vs. State of Punjab 1953
SCR 418, while considering the scope of
section 342 of the old Code, which
corresponds to section 313 Cr.P.C. held
that it is not a sufficient compliance with
the section to generally ask the accused
that
"having
heard
the
prosecution
evidence what he has to say about it". The
accused must be questioned separately
about each material circumstance which is
intended to be used against him. The
whole object of section is to afford the
accused a fair and proper opportunity of
explaining
the
circumstance
which
appeared against him and the question put
to him must be fair and be couched in a
form which even an ignorant or illiterate
person may be able to appreciate and
understand.

6. In the case of Ram Shanker Singh
and others vs. State of West Bengal
reported in AIR 1962 SC 1239, the
Supreme Court while elaborating the scope
of section 342 of the old Code, has held:-
538 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

"Section 342 of the Code of Criminal
Procedure by the first sub-section provides,
in so far as it is material : 'For the purpose
of enabling the accused to explain any
circumstances appearing in the evidence
against him, the Court....shall.... question
him generally on the case after the
witnesses for the prosecution have been
examined and before he is called on for his
defence.' Duty is thereby imposed upon the
Court to question the accused generally in a
case after the witnesses for the prosecution
have been examined to enable the accused
to explain any circumstance appearing
against him. This is a necessary corollary of
the presumption of innocence on which our
criminal jurisprudence is founded. The
object of the section is to afford to the
accused an opportunity of showing that the
circumstances
relied
upon
by
the
prosecution which may be prima facie
against him, is not true or is consistent with
his innocence. The opportunity must be real
and adequate. Questions must be so framed
as to give to the accused clear notice of the
circumstances
relied
upon
by
the
prosecution, and must give him an
opportunity to render such explanation as
he can of that circumstance. Each question
must be so framed that the accused may be
able to understand it and to appreciate what
use the prosecution desires to make of the
evidence against him. Examination of the
accused under section 342 in not intended
to be an idle formality, it has to be carried
out in the interest of justice and fair play to
the accused : by a slipshod examination
which is the result of imperfect appreciation
of the evidence, idleness or negligence the
position of the accused cannot be permitted
to be made more difficult than what' it is in
a trial for an offence".

7. In a recent case of Asraf Ali Vs.
State of Assam 2008 (62) ACC 669, the
Apex Court has held that all the
circumstances which appear against the
accused and upon which the prosecution
relies should be specifically put to the
accused in order to give him an opportunity
to explain those circumstances.

8. In the light of above observations of
the Apex Court, it is evident that by putting
the questions to the accused persons, as
mentioned above, the trial Court had not
properly complied with the requirements of
section 313 Cr.P.C. as the attention of the
accused persons was not drawn towards any
incriminating
circumstance
that
had
appeared against them in the prosecution
evidence while putting questions to them so
as to enable them personally to give
explanation in respect thereof.

9. The contention of the learned
counsel for the revisionists is that due to
improper compliance of the mandatory
provisions of section 313 Cr.P.C., the trial
had vitiated and as such the lower appellate
court should have acquitted the revisionists
instead of remitting the case to the trial
court with any direction. In support of this
contention reliance has been placed upon
the observation of the Supreme Court made
in the case of Basavaraj R. Patil and others
Vs. State of Karnataka and others, 2000(41)
ACC 1013, wherein the trial Court had
recorded the statement of certain accused
persons under section 313 Cr.P.C. and
allowed the statement of three absent
accused persons to be recorded through
counsel and after hearing the arguments
passed a judgment acquitting all the accused
of the offence charged. In the revision filed
by the complainant of the case before the
High Court challenging the order of
acquittal, learned Single Judge of the High
Court observed that the trial court has no
discretion to dispense with the personal
examination of the accused persons under
2 All] Smt. Tahira Begum V Additional District Judge/Court No. 2 Raebareli
539
section 313 Cr.P.C. and after setting aside
the order of acquittal remanded the case to
the trial court with the direction to dispose it
of afresh after examining the three accused
persons under section 313 Cr.P.C. The
Supreme Court while considering the
necessity of the compliance of section 313
Cr.P.C., has observed that non compliance
of section 313 Cr.P.C. can be objected only
by the accused and not by the complainant
or the prosecution and in the absence of any
complaint by the accused for its non
compliance, there was no justification to
remand the case to the trial Court only for
the purpose of examining the concerned
accused personally and to pass fresh order
on merits.

10. The benefit of the above
observation of the Apex Court can not be
extended to the revisionists because, firstly,
the ratio of the case is that non compliance
of section 313 Cr.P.C. can be objected only
by the accused and not by the complainant,
and secondly, in this case it is the accused
revisionists who are complaining about the
improper compliance of section 313 Cr.P.C.
and not the complainant. Moreover, under
clause (b) of sub-section (1) of section 313
Cr.P.C., it is mandatory for the Court in
every inquiry or trial to put questions to the
accused to enable him personally to explain
any circumstance that has appeared in the
evidence against him after the prosecution
witnesses are examined and before the
accused is called on for his defence, and if
the Court fails to properly comply with this
statutory requirement, the appellate court is
well within its powers to remand the case to
the trial court for proper compliance of its
statutory duty in order to secure the ends of
justice.

11. In view of all the aforesaid, the
order of learned lower appellate court
remanding the case and directing the trial
court to record the statement of the accused
appellants under section 313 Cr.P.C. in
accordance with law, does not suffer with
any illegality or material irregularity so as to
warrant the interference of this Court in
exercise of its revisional jurisdiction. This
revision is, therefore, devoid of any merit
and is, accordingly, dismissed.
---------
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.05.2010

BEFORE
THE HON'BLE S.C. CHAURASIA, J.

Civil Revision No.127 of 2008

Smt. Tahira Beghum

 ...Petitioner
Versus
Additional District Judge/Court No. 2
Raebareli

 ...Respondent

Counsel for the Petitioner:
Sri Avadhesh Shukla

Counsel for the Respondent:
Sri Atiya Abid
Mohd. Abid Ali

Code of Civil Procedure-Section-115(III)
(I) and (II)-Revision-by impugned Order
amendment
application
allowed-by
which neither admission withdrawn nor
changed the nature of suit but a man on
additional plea taken-Revisionist has
been given opportunity to file additional
written
statement-held-can
not
be
interfered under revisional jurisdiction.

Held: Para 20

Sub-section (3) of Section 115 C.P.C., as
applicable in State of U.P., clearly
indicates that the superior court shall
not vary or reverse any order made
except when the impugned order comes
within the purview of sub-clause (i) or
sub-clause (ii) of sub-section (3). In the
instant case, the plaintiffs' application