Delhi Development Authority v. Amarjit Singh .

Malik Sharief-Ud-Din, J.:— The respondent Amarjit Singh s/o Inder Singh Kohli r/o A-3 Kailash Colony, New Delhi was prosecuted under Sec tion 29 Sub-sec. (2) read with Section 14, Delhi Development Act 1957 before Shri M.L Sahni, Metropolitan Magistrate who by his order dated 30-1-82 acquitted him.

2. The facts which led to his prosecution are that the respondent as the owner of the building bearing No. A-38, Kailash Colony, New Delhi on 9-10-78 was found having permitted non-conforming use of the building by allowing running of some units of Readymade Garments in contravention of Master Plan for Delhi and Zonal Development Plan of Zone F-2 according to which the building in question could not be used for purposes other than the residential purpose.

3. On Consideration of the arguments of the learned counsel for the parties we may make it clear that we are not examining this case on merits. Mrs. Usha Kumar learned counsel for the appellant has raised two preliminary points. In the first place she has sought our consideration to her application listed as Crl. Misc. No. 1671/82 under Sections 391 and 482 Code of Criminal Procedure and has requested that she be permitted to lead additional evidence in the form of an attested copy of a judgment whereby the respondent in a similar case in respect of the same premises has been convicted on 20-12-78. We find a reference to this judgment has been made by PW-1 and there can be no serious objection if an attested copy of that judgment is received as additional evidence as that piece of evidence would otherwise be necessary for the just decision of the case. We accordingly allow Crl. Misc. 1671/82 and take on record the attested copy of judgment of Mr. R.C Chopra, Metropolitan Magistrate in case State v. Amarjit Singh under Section 29(2) read with Section 14 Delhi Development Act 1957 passed on 20-12-78.

4. Mrs. Usha Kumar learned counsel for the appellant has also raised an important question of law before us. She has submitted that in this case after the close of prosecution evidence and before the accused entered into his defence the learned trial court has failed to record the statement of the accused respondent under Section 313 Cr. P.C with the result that the most material circumstance in respect of ownership of the premises by the accused has remained unexplained. That the learned magistrate after accepting the prosecution case that the building is being put to non-conforming use has thrown out the prosecution case on the ground that the prosecution has failed to prove that the respondent in his capacity as an owner has permitted the non-conforming use of the premises. According to her the failure by the learned court below to examine the accused in respect of some important circumstances particularly regarding the ownership and the previous conviction of the respondent in a similar offence in respect of the same premises has resulted in miscarriage of justice and that since similar miscarriage has occurred and is likely to occur in a large number of such cases the court may examine the point and lay down rule on the subject. The question thus raised for the consideration of the court is :

“Whether in a summons case where the court has dispensed with the personal attendence of the accused it can altogether dispense with his examination under clause (b) Section 313 Cr. P.C?”

5. Now before we deal with the point of law to which our attention has been sought we find it necessary to state the manner in which the case under consideration came to be tried. The case was tried as a summons case. During the course of proceedings and after the accused pleaded not guilty to the charge, the accused was exempted from personal attendance. After the close of prosecution evidence the learned magistrate dispensed with the examination of the accused under Section 313 by a creptic and casual order Which apparently has been mechanically passed. The prosecution in this case had examined PW-1 Mr. K.K Tuli, Junior Engineer and one more witness. PW-1 has testified in respect of the ownership of the premises by the accused, regarding the premises being used for non-conforming purposes and regarding the fact that in a similar case respondent Amarjit as owner of the same premises was convicted by Shri R.P Chopra, Metropolitan Magistrate on 20-12-78 Shri Inder Mohan Pal examined in defence has testified to the fact that he was working as Care taker of this property with Kohli Brothers. While admitting that the premises was being used for non-conforming purpose he further stated that one Jang Bahadur Kohli was the owner. He has relied on a lease deed vide which Shri Jang Bahadur is purported to have let out the ground floor to M/s Intercontinental Export Corporation and further stated that in the basement sister concern of Intercontinental Export Corporation was functioning. The learned magistrate acquitted the accused after making the following observation:

“Since the ground floor was let out by Jang Bahadur as per the testimony of the defence witness there can be no difficulty in holding on the basis of his testimony that basement was also let out by him”.

6. We find force in the argument of Mrs. Usha Kumar learned counsel for the appellant that in a case such as this where the positive case of prosecution is that the accused as owner of the premises has permitted the non-conforming use and where it was in evidence that in a previous case of similar nature in respect of the same premises the accused had been convicted on his own plea of guilty, it was all the more necessary for the court below to examine the accused under Section 313 Cr. P.C and, to find out how the accused explains these circumstances and that non-examination of the accused under Section 313 Cr. P.C in a case of this nature has resulted in miscarriage of justice. Her concern that under the circumstances we may examine as to how and in what manner the discretion vested in the court under proviso to Sub-sec. (1) of Section 313 Cr. P.C can permissibly be exercised is genuine.

7. We may reiterate that we are not examining this case on merits. We are only examining it on a limited point regarding the scope of Section 313 Cr. P.C and also the duties it enjoins upon a court, we have made a reference to the facts of this case only for a limited purpose to indicate how important under the circumstances of this case it was for the court below to record the statement of the accused under Section 313 Cr. P.C To our mind it appears that the only persons who could explain as to how he came to be convicted in an earlier case is the accused.

8. We may at this stage take notice of the provisions of Section 313 Cr. P.C which reads as under:

Sec. 313 Sub-sec. (1) “In every enquiry or trial for the purpose of enabling the accused personally to explain any circumstances appearing in evidence against him, the court:

(a) may at any stage, without previously warning the accused put such questions to him as the court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case.

(2) provided that in a summons case where the court has dispensed with the personal attendance of the accused, it may also dispen se with his examination under clause (b).

9. We may recall that Section 313 Cr. P.C of 1973 corresponds to Section 342 of Act V of 1898. Excepting in form both these sections are almost similar. However, in Section 313 after Sub-section (1) (a) and (b) a proviso has been added which was not there is Section 342 of old Code. Moreover, in Sub-sec. (1) of Section 313 the word “personally” has been used which was not present anywhere in Section 342 Cr. P.C It would thus appear that the requirement of Section 313 is that the accused has to be examined personally. This principle despite the fact that the word “personally” was not appearing in Section 342 Cr. P.C old was also recognized while examining the scope of Section 342. In A.I.R 1969 S.C p. 342, Bibhuli Bushan Dass Gupta and another v. State of West Bengal the Hon'ble Supreme Court was pleased to observe:

“Even in a case where the magistrate has dispensed with the personal appearance, a pleader cannot represent the accused for purposes of Section 342 of the Cr. P.C except where the accused is company or a juridical person and hence cannot be examined personally. In all other cases only the accused can be examined under Section 342 of the Criminal Procedure Code. Examination of the pleader is not a sufficient compliance”.

10. This would clearly go to show that even though under the old provision Section 342 the word, ‘personally’ was missing the courts forowned at the practice of the accused being examined through counsel, plain reading of Sub-sec. (1)(b) of Section 313 would go to show that the provision is mandatory. Obviously, it had to be so, because it is an essential stage in the trial of a case and the statement of the accused under Section 313 Sub-sec. (1)(b) has to be recorded irrespective of the fact whether the accused intends to lead defence or not. The examination of the accused under Section 313 Cr. P.C is a material place of evidence which can be used both in his favour and against him. Section 313 is based on the principle audi alteram partem, namely, that no one should be condemned, unheard and the accused should be heard, not merely on what is prima facie proved against him but on every circumstances appearing in evidence against him. This is not to suggest that the purpose of the Section is only to protect the interests of the accused. Its object is to enable the accused to explain any circumstances appearing against him in evidence the intention of the provision like any other procedural provision mainly is to further the interests of justice and, to enable the court to decide the question of guilt of the accused. The result of the examination may be beneficial to the accused but it may equally be injurious to him. The judges and magistrate therefore must realize the importance of the examination of the accused under this section particularly in cases where many questions may remain unanswered in the absence of the explanations of the accused. It is thus their duty to examine the accused properly and fairly bringing home to his mind in simple and clear language the exect case he has to be meet and each material point that is sought to be made against him and of affording him a chance to explain it is he can and if he so desires.

11. It would thus appear that the second part of question 313 Cr. P.C is absolutely mandatory. It clearly says:

“the court shall after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally on the case.”

All that we have stated above has been done with a singular purpose to highlight the significance of examination of the accused under Section 313 Cr. P.C We may state that procedural laws are essentially meant to further the interests of justice and they cannot be interpreted in a manner which may have the effect of frustrating the interests of justice.

12. In this background let us now examine the point with which we are faced. We have seen in this case that many important questions have remained unanswered simply because of the failure of the court below to examine the accused under Section 313, which in the process may have resulted in miscarriage of justice and which in our view is likely to result in such miscarriage. We are therefore of the view that in all cases be it a summons case or a warrant case, the courts must examine the accused under Section 313 Cr. P.C but in view of the proviso to Sub-sec. (1) of Section 313 we are of the view that where the court has dispensed with the personal attendance of the accused, it may also dispense with his personal examination under clause (b) to Sub-sec. (1) of Section 313 under certain given and compelling circumstances but, that does not absolve the court of its duty to examine the accused under Sub-sec. (1), Sub-cl. (b) of Section 313. Mrs. Usha Kumar, learned counsel for the appellant once again invited our attention to A.I.R 1969 S.C 381 to press her point that examination of the accused under Section 313 cannot be permitted through a pleader in any case. We however, do not subscribe to that view.

13. It should be recalled that this rule was laid down while interpreting section 342 of the old code which did contain any proviso as is now added to Section 313 Cr. P.C The proviso to Section 313 clearly lays down that the:

“Court may also dispense with his examination under clause (b)”.

The proviso to Section 313 Sub-sec. (1) only applies to summons cases where the court has dispensed with the personal attendance of the accused. A plain reading of the words:

“it may also dispense with his examination under clause (b)”

would show that the Legislature has conferred a discretion on the court to dispense with the personal examination of the accused and the intention could never be to altogether bid good by to the requirement of Sub-sec. (1)(b) of Section 313. By conferring this discretion apparently the Legislature never intended to dilute the mandatory’ nature of Sub-sec. (1)(b) of Section 313. Thus we are of the view that even in a summons case where the court has dispensed with the personal attendance of the accused the court could only dispense with his personal examination under clause (b) under certain circumstances but to say that the court is absolved of its duty to examine the accused under Sub-clause (b) would not be correct. It is therefore necessary for the court in such a case to record the examination of the accused under Sub-clause (b) through his counsel. In the present case was find that after having exempted the accused from personal attendance the learned trial court has exercised its discretion just on the asking of the defence counsel in a highly arbitrarily and casual manner which has virtually made Sub-clauses (b) of Section 313 Cr. P.C ineffective. To our mind it appears that the language of the proviso such as:

“it may also dispense with his examination under clause (b)”

only means that such accused may not be compelled to explain the circumstances in person if there are reasons on the basis of which the court may find it necessary to exercise its discretion and dispense with his personal examination. But according to the well recongnized judicial principles such discretion is always to be used judicially and not capriciously. Judicial use of discretion in turn may require the court to give due consideration to the facts of each case before making use of it in favour of the accused. Courts will and should always be reluctant to exercise such discretion if it places a party at a disadvantageous position and where it might adversely effect the interests of justice. Interests of justice are likely to suffer by an indiscreet use of discretionary powers particulary, in cases such as those where the accused does not want to explain certain circumstances which may be very vital for the just decision of the case.

14. In cases of this nature the question of ownership would always arise and if the prosecution leads evidence that the accused is the owner of the premises the only appropriate person who can explain it would be none else but the accused. It therefore follows that irrespective of the fact whether it is a warrant or a summons case examination under Section 313 Cr. P.C cannot be totally dispensed with though in summons cases where the court has dispensed with personal attendance of the accused it may if circumstances so warrnat examine his counsel generally on the case. Such examination of the accused must be done irrespective of the fact whether the accused enters into his defence or not. We may therefore generally observe that the object of proviso to Sub-sec. (1) of Section 313 Cr. P.C can not and could never be to reduce clause be Section 313 Cr. P.C to nullity and to subvert the scheme of trial. It only says that the court may dispense with his examination and not that there will be no examination. In the present case we find, that there has been no examination of the accused under Section 313 Cr. P.C and since we have permitted Mrs. Usha Kumar to bring on record an attested copy of the judgment as additional piece of evidence we are of the view that this case must be remanded with the direction that the learned trial court shall examine the accused in accordance with the law and then, after affording him an opportunity to lead defence if any decide the case afresh under law. We therefore set aside the judgment under appeal as also the acquittal of the accused and direct that the case be retried from the stage in the light of the observations made by us.

15. Since we feel that non-examination of the accused, under Section 313 Cr. P.C in such cases has and is likely to result in miscarriage of justice in a large number of cases we further direct that a copy of this judgment shall be circulated among all judicial officers of district Delhi.