IMPORTANCE OF QUESTIONING OF AN ACCUSED
IN A CRIMINAL TRIAL
I. INTRODUCTION
Criminal Trial is said to have been commenced as soon as charges are framed, questioning at the beginning of trial is known as framing of charges and equally at the end of trial an Accused will be questioned under section 313(1)(b) of Cr.P.C. No doubt framing of charges and questioning under section 313 (1)(b) of Cr.P.C are the important and crucial stages in Criminal Trial, because an accused has been summoned only to answer the charges. If an accused has shown that he is prejudiced either on the framing of charges or on the questioning under section 313(1)(b) of Cr.P.C, the entire trial proceedings will be vitiated. Hence, the framing of Charges and Questioning under Section 313(1)(b) of Cr.P.C. has got its own importance in a Criminal Trial, So every care has to be taken by the Learned Trial Judge.
II. DISCUSSION
There are two provisions namely Section 215 and section 464 of Cr.P.C. which speak about error of charges ,we have to take a note that why the law maker has coined two provisions of law for one same point namely error of charges, it will demonstrate the importance of framing of charges, these two provisions speak differently about error on the charges.
A. Framing of Charges.
In Chapter XVII Cr.P.C. sections 211 to 224 of Cr.P.C speak about charges, this has been coined keeping in mind about Principles of Natural Justice. An accused must know the details of charges and then only he can prepare for his defence, so there is a duty on the Learned Trial Judge to frame charges and also to explain the charges to an Accused as per sections 211 to 224 Cr.P.C.
It is to be seen that before framing of issues by the civil court, parties has to be heard under order 14 rule 1 to 5 and draft issues can also be given but strictly speaking audience has to be given before framing of issues by the civil court,equally before framing of charges the Condition Precedent to the frame the Charge is (1) to consider the documents submitted under section 173(2) Cr.P.C. and (2) hearing of an accused and public prosecutor. Hence, hearing of an accused in this regard is mandatory as per Sections 227, 239. For easy and better reference Sections 227 and 239 of Cr.P.C. are extracted hereunder.
Section 227 - Discharge.
If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.
Section 239-When accused shall be discharged.
If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
In Section 227 of Cr.P.C the following words has been coined …..after hearing the submission of the Accused and Prosecution in this behalf and equally in Section 239 of Cr.P.C. the following words are important “….and the Accused and the opportunity of being heard”. Hence the hearing of an accused before Framing of Charges is essentially a mandate of Law.
It is to be pointed out that the charges can be altered or even amended, in such an event the parties to the case has to be given an opportunity either to Cross-examine the witnesses already examined or to examine any witness afresh. At the time framing of Charges as per the language of Section 227 and 239 of Cr.P.C. the documents produced by the prosecution alone can be considered. The following judgment would throw light on the subject.
1) Ajaykumar Parmar Vs State of Rajasthan, AIR 2013 SC 633 = 2012 (12) SCC 406;
2) Dinesh Tiwari Vs State of U.P., AIR 2014 SC 3502 = 2014 Cr.L.J 4192.
It is pertinent to point here that the Learned Trial Judge need not conduct roving enquiry at this stage and it is equally important that the Learned Trial Judge independently has to apply his judicial mind into the documents forwarded to him under section 173(2) Cr.P.C. and to frame necessary charges. So, there is no need for filing of an application for discharge. The conclusion arrived at by the Investigation Officer may be different, the Learned Trial Judge need not concur with the opinion arrived at the Investigating Officer. In that sense, the Learned Trial Judge has to apply his judicial mind on the materials placed before him in order to frame necessary and proper charges.
B. Error in Framing of Charges:
Since, Sec.215 & 464 of Cr.P.C. speak about error in framing of charges same are extracted hereunder:
Section 215 - Effect of errors.
No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.
Illustrations:
(a) A is charged under section 242 of the Indian Penal Code (45 of 1860 ), with" having been in possession of counterfeit coin, having known at the time when he became possessed thereof that such coin was counterfeit," the word" fraudulently" being omitted in the charge. Unless it appears that A was in fact misled by this omission, the error shall not be regarded as material.
(b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge, or is set out incorrectly. A defends himself, calls witnesses and gives his own account of the transaction. The Court may infer from this that the omission to set out the manner of the cheating is not material.
(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were many transactions between A and B, and A had no means of knowing to which of them the charge referred, and offered no defence. The Court may inter from such facts that the omission to set out the manner of the cheating was, in the case, a material error.
(d) A is charged with the murder of Khoda Baksh on the 21st January, 1882 . In fact, the murdered person' s name was Haidar Baksh and the date of the murder was the 20th January, 1882 . A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh: The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial.
(e) A was charged with murdering Haidar Baksh on the 20th January, 1882 , and Khoda Baksh (who tried to arrest him for that murder) on the 21st January 1882 . When charged for the murder of Haider Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled, and that the error was material.
464. Effect of omission to frame, or absence of, or error in, charge.
(1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may-
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge.
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.
From the above standpoint, the keyword, which must be noted in Section 215 and 464 of the Cr.P.C. is as follows:-
Section 215 -
…. “it has occasioned failure of justice.”
Section 464 -
(1) …. “A failure of justice has in fact be occasioned thereby”
(2) …. “A failure of justice has in fact been occasioned, it may ….”
It is to be pointed out that these provisions will demonstrate that there should not be any error in the framing of charges and there should not be failure of justice on account of such error. It is also pertinent to remind here that the questioning of an accused under Section 313(1)(b) of Cr.P.C. is also equally important but there is no equal provisions like effect of error and to cure the defect if any in questioning under Section 313(1)(b) of Cr.P.C.
III. IMPORTANCE OF QUESTIONING OF AN ACCUSED UNDER SECTION 313 (1)(b) Cr.P.C.
It is to be noted that at fag end of the Trial the Accused must be reminded that what are all the evidences pointing towards him which are available on record,enabling him to prepare for his arguments. As per the catena of judgments of the honourable Supreme Court and various High Courts, questioning of an accused under Section 313(1) (b) of Cr.P.C. is not an empty formality.So, every care has to be taken in preparing questions under Section 313(1)(b) of Cr.P.C.
i) Ashok Kumar Vs. State of Haryana, AIR 2010 SC 2839.
ii) Narsingh Vs State of Haryana, 2015 (1) SCC 496
“Section 313 of Cr.P.C. described a procedural safeguard for an accused
… “these opportunity is valuable from the stand point of the accused”
In the case of Paramjeet Singh Vs. State of Uttarkand – AIR 2011 SC 200 = 2010 (4) MLJ (Crl) 481 SC:
“Section 313 Cr.P.C. is based on the fundamental principle of fairness the attention of the accused must specifically be brought to inculpatory pieces of evidence to give him an opportunity to offer an explanation if he choses to do so. Therefore the Court is under a legal obligation to put the incriminating circumstances before the Accused and solicit his response”
No doubt an accused must be given an opportunity to explain with regard to the incriminating evidences adduced during the Trial, but at the same time, the entire evidence of a particular witness should not be put in a single question, it will make him confuse.It is to be remembered here that if a portion of evidence is not put to the accused under section 313 (1)(b) Cr.P.Cno reliance can be placed on such evidence and so conviction on such evidence is not possible.
The following judgements would also very crucial in this regard:
1) Naval Kishore Singh Vs State of Bihar, 2005 MLJ (Crl) 199 SC;
2) Santhosh Kumar Vs State, 2010 (4) MLJ (Crl) 455 SC;
3) Asraf Ali Vs Assam, 2008 (16) SCC 328.
4) 2007 2 MLJ Crl1172
5) 2007 2 MLJ Crl 1068
CONCLUSION:
The framing of Charges and Questioning of an accused as contemplated in the Code of Criminal Procedure, 1973 has reflected the Principle of Fair Trail as enshrined in the Constitution of India, 1950. Hence, every care has to be taken at the time of Framing of Charges as well as at the time of Questioning of Accused.