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PETITIONER: MIR MOHD. OMAR & ORS.

       Vs.

RESPONDENT: STATE OF WEST BENGAL

DATE OF JUDGMENT08/08/1989

BENCH: SHETTY, K.J. (J) BENCH: SHETTY, K.J. (J) AHMADI, A.M. (J)

CITATION:  1989 AIR 1785            1989 SCR  (3) 735  1989 SCC  (4) 436        JT 1989 (3)   316  1989 SCALE  (2)292

ACT:     Code of Criminal Procedure,  1973: Section 278--Recorded evidence--Correction--Object  of--Not intended to  permit  a witness  to reslie from his  statement--Unsigned  correction slips not properly filed Effect of.     Section  313--Examination of  accused--Object  of--Trial Court-Whether  should consult or hear counsel for  the  par- ties--Prosecution  can invite attention of Court if any  in- criminating circumstances left out.

HEADNOTE:     In  the Sessions trial of the  appellants-accused  under section  302/ 34, I.P.C., the prosecution examined  34  wit- nesses  including  the Investigation  Officer  (PW-34).  The Trial  Court examined the accused under section 313  of  the Code  of Criminal Procedure, 1973 and recorded their  state- ments. Thereafter the Public Prosecutor filed an application for re-examination of the first appellant under section  313 which was rejected by the Trial Court.     An unsigned correction slip, without any application and service  on  the  defence counsel, was  also  filed  seeking correction in the statement of PW-34. The Trial Court recti- fied  the  typographical errors, but refused to  make  other corrections which would have changed the substantive part of the evidence.     The  State  preferred a Criminal Revision  in  the  High Court  which  stated that the Trial Court has  not  followed proper procedure regarding correction or recorded  evidence. The  High Court expunged the examination under section 3  13 of  all the accused reserving liberty to the prosecution  to file  application for re-examination of PW-34  and  accepted the demand for transfer of the case. Hence these appeals. Allowing  the appeals, and reversing the order of  the  High Court,     HELD: 1. The object of section 278 is two fold:  firstly to  ensure that the evidence of the witness as  recorded  is accurate  and  secondly  to give the  witness  concerned  an opportunity to point out mistakes. If the 736 correction suggested by the suggested by the witness  is one which the judge  consideration necessary he will make it  at

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once  as required by sub-section (1), but if the  correction is such that the judge does net consider necessary,  subsec- tion  (2)  requires that a memorandum of  the  objection  be made, and the Judge add his remarks, if any, thereto. [741E]     1. 1 In the instant case, the trial judge corrected  all the  typographical errors which he considered necessary  but refused to carry out the substantive part of his deposition. The  section is not intended to permit a witness  to  resile from  his  statement in the name of  correction.  The  trial judge was justified m refusing to effect the change which he thought  was intended to change the earlier version. He  did not  make a memorandum as the correction slip  was  unsigned and  was  not properly filed. Since the correction  slip  as well as the remarks of the trial judge have become a part of the  record, nothing more need he done as the provisions  of section 278 are substantially complied with. [741F-G]     2. The object of section 313 is that the accused may  he given  an opportunity of explaining each and  every  circum- stance  appearing  against  him. The trial  judge  need  not consult or hear the public prosecutor or the counsel for the accused as to the nature of the circumstances or the type of questions to he put to the accused. It is his duty to  exam- ine  the  accused as per law. It is, however,  open  to  the prosecution  to  invite the attention of the  Court  to  any incriminating  circumstance  left  out and not  put  to  the accused. [742C-D]     2.  I  In the instant case, after  the  prosecution  has closed the evidence the accused were examined under  section 313  of the Code. The prosecution did not at any stage  move the trial judge for recalling PW 34 for further examination. Therefore there was no justification for the High Court  for giving liberty to the prosecution for re-examination of  PW- 34  and expunging the examination of all the  accused  under section 313. [742A-741H]     3.  In  the instant case, as the trial judge  has  since retired  the  question of transfer of the  case  to  another Bench of the City Sessions Court does not arise. [742E]

JUDGMENT:     CRIMINAL  APPELLATE JURISDICTION: Criminal  Appeal  Nos. 467-468 of 1989.     From  the  Judgment  and Order dated  27.4.1989  of  the Calcutta  High  Court in Crl. Revision No. 641  and  720  of 1989. 737     A.D. Giri, D.P. Ghosh, S.B. Pathak and B.S. Chauhan  for the Appellants.     N.N.  Gooptu,  Attorney General, P.P. Rao,  D.K.  Sinha, J.R.  Das, N .A. Choudhary, R.B. Mahato, Raj K. Gupta,  Siba Pada  Banerjee, Subhrangshu Banerjee and P.C. Kapur for  the Respondents. The Judgment of the Court was delivered by     K.  JAGANNATHA SHETTY, J. The special leave  is  granted and the appeal stands disposed of by this order.     The  appellants-accused are facing trial for an  offence under secs. 302-34 IPC and alternatively under secs.  364-34 IPC before the City Sessions Court, 13th Bench, Calcutta  in Sessions  Trial  No. 1 of November, 1987 (Session  Case  No. 5/87).  The  prosecution examined in all 34  witnesses.  The last witness examined is the investigating officer (PW  34). His examination went on for a number of days and came to  an end on March 16, 1989. On the next day that is, on March 17, 1989,  the court examined the accused under sec. 313 of  the

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Criminal Procedure Code and recorded their statements.     On March 21, 1989, the public prosecutor filed an appli- cation proposing some more questions to be put to the  first appellant  by  way of re-examination under sec. 313  of  the Code. On the same day, the trial court by a considered order rejected  that  application. The relevant  portion  of  that order runs as under:                         "I think the Ld. P.P. can argue  all               these  points as the time of  advancing  argu-               ments  in  this  case and this  case  and  the               accused need not be re-examined on this  point               under  sec. 313 Cr.P.C. The Ld. P.P. has  also               submitted that in question No. 6 and  question               No.  7  the word "these witnesses"  should  be               replaced by the name of the witnesses. I think               the  names of the witnesses have already  been               put  to  the accused persons in  the  previous               questions. So in the question No. 6 and  ques-               tion No. 7 the name of the witnesses need  not               be  mentioned again. Then it has been  pointed               out  that the question No. 4 in place  of  the               words "you all", the question should be  writ-               ten  as ’Khurshed, Bhulu, Noor Alam and  tenea               under  your order.’ I think it is implied.  If               other  accused  persons did  anything  at  the               order of one particular accused it is  implied               that all the accused persons               738               committed the mischief. So on this point  also               the  accused  need not be  re-examined  again.               Lastly, it has been pointed out that in  ques-               tion No. 2 in place of P.W. 12 Abdullah Daweed               the words "P.W. 7 Md. Mein" should be written.               On  perusal of the evidence on record  I  find               P.W.  12 Abdullah Dawood is also a witness  of               the occurrence and so the question need not be               corrected. Discussing the above circumstances,               the petition filed by the prosecution this day               for  re-examination  of  the  accused  persons               under sec. 3 13 Cr.P.C. for further  re-exami-               nation is rejected.     On  March  30, 1989 the public  prosecutor  applied  for adjournment of the case on the ground that he would like  to move the High Court against the aforesaid order dated  March 21,  1988. The case was accordingly adjourned to  April  18, 1989. It is said that in between these days some  correction slip  was filed in the Court seeking 25 corrections  in  the statement of PW 34. The said slip was not accompanied by any application  nor was it served on counsel for  the  accused. The trial court, however, in the interest of justice  recti- fied the typographical errors in the statement of PW 34  but refused  to make other corrections which would have  changed the substantive part of his evidence.     The  State moved the High Court with  Criminal  Revision No.  64  1 of 1989 praying: (i) Corrections be made  in  the evidence  of PW 34 as per slip supplied to the Trial  Court; (ii)  Additional  statement  of the  first  appellant  under section  313  Cr.P.C. be recorded in  respect  of  questions proposed by the prosecution; and (iii)Transferring the  case to some other Bench of the City Sessions Court as the  trial judge has acted with bias.     There  was  another revision application filed  by  Smt. Anushila  Devi  who  claims herself to be a  sister  of  the deceased  Mahesh Kumar Agarwal and as a party interested  in the case. She also sought transfer of the case from the 13th

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Bench to some other Bench in the City Sessions Court on  the apprehension  that  there would not be a fair trial  in  the case.     The High Court on examination of the records found  that the correction slip filed before the that court was not part of  the  records in the case. The High Court called  for  an explanation  from learned trial judge who wrote to the  High Court as follows:               "The  correction slip as referred to  has  not               been pro-               739               perly filed. It is not signed by anybody.  The               case  number or the court number has not  been               mentioned  in  it. Nor any petition  has  been               filed  by  the  prosecution  along  with  such               concerned  correction slip. Even the  copy  of               the same has not been served upon the  defence               advocates. Still then as many as 16 typograph-               ical mistakes have already been corrected  out               of  25 mistakes as per correction slip.  Other               mistakes are not typographical mistakes and in               the  name of correction the  evidence  already               recorded cannot be changed. So other  mistakes               have not been corrected."               He has also stated in the explanation:               "Unsigned  correction  slip in 3  loose  sheet               could not be sent earlier as the case recorded               was forwarded in a hurry and the said  correc-               tion slip is now enclosed herewith."     The  High  Court, however, was not  satisfied  with  the explanation and expressed the view that the trial judge  has not  followed the proper procedure envisaged in sec. 278  of the Code since he has ’a closed mind’. The Court also  found fault  with  the procedure adopted by the  prosecution,  but liberty  was reserved to the latter to file  an  application for re-examination of PW 34.     As to the claim for re-examination of the accused  under sec. 3 13 of the Code, the High Court said as follows:                        "We  have heard at length  Mr.  Durga               Pada Dutta, the learned Advocate appearing  on               behalf  of  the accused opposite  parties  who               frankly conceded that point Nos. 1, 2, 3, 4  &               5 could be allowed. But objections were raised               with  regard to point Nos. 6 & 7 when  it  was               suggested  by the prosecution that a  question               should have been put regarding seizure of hair               on  5.11.86 and of forwarding the same to  the               F.S.I.  for comparison with the scalp haft  of               deceased  Mahesh Kumar Agarwal and the  report               of the F.S.L. It was suggested in point No.  7               that  a  question  should  be  put   regarding               presence of accused Omar near the crossing  of               B.B.  Ganguly Street and C.R. Avenue at  about               1.15 a.m. on 5.11. 1986 when the I.O.’s testi-               mony was not very clear on the point."   .....               "We would have allowed ordinarily the applica-               tion filed on 21.3.. 1989 with regard to point               Nos.  1 to 5 and would have left the  question               on point Nos. 6               740               & 7 to the trial judge on the basis of conces-               sion  made by Mr. Dutt, the  learned  Advocate               for  the accused opposite parties and also  on               the basis of our own opinion on this aspect of               the  case but then since we direct  the  trial

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             court to hold the re-examination of PW 34 on a               proper application being filed by the prosecu-               tion in this regard. We would expunge not only               the  examination under sec. 313 Cr.P.C.  which               is already on record in respect of accused Mir               Mohd.  Omar but also in respect of  the  other               accused persons and direct the court below  to               proceed afresh in the matter after the record-               ing  of evidence including the  re-examination               of  PW 34 is complete and we would direct  the               court  below further to hear out  the  submis-               sions  of the prosecution as welt  as  defence               regarding  framing of proper  questions  under               sec. 313 Cr.P.C."     The High Court also accepted the demand for transfer  of the  case and the matter was left to the Chief  Judge,  City Sessions  Court  either  to try the case by  himself  or  to transfer to some other Bench regard being had to the conges- tion of the different Benches.     In this appeal, the accused have challenged the legality of the order of the High Court.     We  have  heard Mr. A.D. Giri, learned counsel  for  the appellants  and  learned Advocate General for the  State  of West  Bengal, besides Mr. P.P. Rao, learned  senior  counsel for the private party. We have also perused the material  on record. We find it difficult to support the impugned  order. It seems to us that the High Court has needlessly interfered with the discretion exercised by the trial court with regard to  correction  slip  as well as on  re-examination  of  the accused  under  sec. 3 13 of the Code. We do  not  find  any infirmity  in the procedure followed by the trial Judge  and if there is any, it is only in the order of the High  Court. The  High Court was uncharitable to the trial judge when  it observed  that he has ’a closed mind’. It may be noted  that the  correction slip was not filed when the day to day  evi- dence of PW 34 was recorded and read over to him. Nor it was filed on the last day of recording his evidence. It does not bear  any signature or the date. The trial  judge,  however, thought fit to correct typographical errors in the statement of  PW 34 which he would have corrected even  otherwise.  He refused to make any correction or alter the substantive part of the evidence. Indeed, he was fight in not tinkering  with the  substantive  part of the evidence on the  basis  of  an unsigned correction slip. 741     In the Sessions trial the court has limited jurisdiction with  regard to correction of the recorded evidence  of  any witness. Section 273 provides:                         "Procedure  in regard to  such  evi-               dence when completed                         (1) As the evidence of such  witness               taken under sec. 275 or sec. 276 is  completed               it  shall be read over to him in the  presence               of  the accused, if in attendance, or  of  his               pleader, if he appears by pleader, and  shall,               if necessary, be corrected.                         (2)  If the witness denies the  cor-               rectness of any part of the evidence when  the               same  is read over to him, the  magistrate  or               presiding judge may, instead of correcting the               evidence  make  a memorandum  thereon  of  the               objection made to it by the witness, and shall               add such remarks as he thinks necessary."     The  object of sec. 278 is two fold: firstly  to  ensure that the evidence of the witness as recorded is accurate and

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secondly  to  give the witness concerned an  opportunity  to point  out mistakes, if any. If the correction suggested  by the  witness is one which the judge considers  necessary  he will make it at once as required by sub-sec. (1) but if  the correction  is such that the judge does not consider  neces- sary, sub-sec. (2) requires that a memorandum of the  objec- tion be made and the Judge add his remarks, if any, thereto. In  the present case, the learned trial judge corrected  all the  typographical errors which he considered necessary  but refused to carry out the substantive part of his deposition. The  section is not intended to permit a witness  to  resile from  his statement in the name of correction.  The  learned trial  judge was justified in refusing to effect the  change which he thought was intended to change the earlier version. He  did  not make a memorandum as the  correction  slip  was unsigned and was not properly filed. Now, since the  correc- tion slip as well as the remarks of the learned trial  judge have become a part of the record, nothing more need be  done as  the  provisions of sec. 278 are  substantially  complied with.      We equally see no justification for the High Court  for giving liberty to the prosecution to file an application for re-examination  of PW 34. In fact it will be seen  from  the operative  portion  of  the impugned order  the  High  Court proceeds on the assumption that PW 742 34 would be recalled for further examination. Here again  it may  be noted that the prosecution has closed the  evidence. The accused have been examined under sec. 3 13 of the  Code. The  prosecution did not at any stage move the  trial  judge for  recalling PW 34 for further examination. In these  cir- cumstances,  the  liberty  reserved to  the  prosecution  to recall PW 34 for re-examination is undoubtedly uncalled for.     There  is yet another grave error committed by the  High Court.  It has expunged the entire examination under sec.  3 13 of the Code of all the accused. We fail to understand the need for this extraordinary step. It is unfortunate that the High  Court should make that order. Assuming it was  on  ac- count  of its permission to re-examine PW 34, even  in  that case  it would be sufficient to further examine the  accused with  reference  to the additional circumstances,’  if  any, appearing  against the accused on such  re-examination.  The object  of  sec. 3 13 was that the accused may be  given  an opportunity  of explaining each and every  circumstance  ap- pearing  against  him. The trial judge need not  consult  or hear the public prosecutor or the counsel for the accused as to the nature of the circumstances or the type of  questions to  be  put to the accused. It is his duty  to  examine  the accused as per law. It is, however, open to the  prosecution to  invite the attention of the Court if  any  incriminating circumstance  is  left out and not put to  the  accused.  We reserve liberty to the prosecution in this regard.     The question of transfer of the case to another Bench of the City Sessions Court also does not arise now. We are told that the that judge has since retired and another judge  has taken over his place. He shall, therefore, take up this case expeditiously and proceed preferably day to day, as  earlier ordered by the High Court.     In  the result, the appeal is allowed and the  order  of the High Court is reversed. This order shall be communicated to  the that court within two days by cougher  service.  The parties  should appear before the trial court on August  14, 1989 to receive further orders. T.N.A.                                                Appeal allowed.

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