KARNAIL SINGH (L/NK) Vs. STATE

JUDGEMENT

(1.) IN this case after the statement of the Ballistic expert was recorded under section 428 of the Criminal Procedure Code the question arose whether this court could examine the accused under section 342 of Cr. P.C. with a view to enable him to explain the circumstances that have appeared against him in evidence at the appellate stage, and also whether the court could question the accused in matters that have already come on record against him in the course of evidence during trial but which the trial court had inadvertently or carelessly omitted to put to him. Mr. M.L Qureshi the learned counsel for the accused at one stage contended that the examination of the accused could be confined only in respect of matters that have appeared against him in evidence at the appellate stage. But later on he shifted his stand and argued that Section 342 of Cr. P.CL did not apply to evidence recorded under section 428 of Cr. P.C. as according to him recording of additional evidence under section 428 was neither an enquiry nor trial. No question whatsoever could, therefore, be put to the accused as regards matters and circumstances appearing against him in the additional evidence. Nor could any question be put to the accused regarding a matter left out by the trial court with a view to fill in lacuna as it would seriously prejudice his case. In support of his contentions he has relied upon A.I.R. 1925 Bombay 201 and A.I.R. 1940 Pat. 29. The Additional Advocate General has, on the other hand, controverter this proposition enunciated by Mr. Latif by urging that Section 342 of Cr. P.C. does not apply to the evidence recorded at the stage of the appellate proceedings and that the appellate court is not powerless to put question. to the accused in order to do substantial justice in the case. The appellate court has got the same powers in this behalf as the trial court has.

(2.) IN our view the matter needs to be studied from a deeper perspective considering the object of Sec. 342 Cr, P.C. The A section is aimed at enabling the accused to offer his explanation to the incriminating circumstances appearing against him in evidence. The policy of the Section is based on the principle involved in the maxim audi alterm partem. The accused should be heard not merely on what is prima facie proved against him, but on every circumstance appearing it evidence against him. He should be given chance to explain any am every matter appearing in evidence against him in order to promote the ends of justice, lest he may on conviction say that he was not hears in his defence and was given no time to explain. Therefore even if Section 342 may not be said to apply in terms to the evidence recorded an appellate stage nevertheless the principle underlying the scheme of the Section does apply. Will it be fair to act upon the evidence of the Ballistic expert without giving the accused chance to explain circumstances appearing against him in this evidence? In our view such a course will not be conducive to justice and will indeed be the very an thesis of fair trial. A similar question came up before a Full Bench of the Punjab High Court in A.I.R. 1952 Punjab 214. The following question was referred to the Full Bench for decision: - "If in an appeal, reference or revision the High Court is of the opinion that the provisions of S. 342 of Cr. P.C. have been in - sufficiently complied with, is it within the powers of the court under the provisions of Section 428 or 375 or any other Section of the Code or of any other Law to examine or further examine the Convict? If so under what circumstances - The answer returned by the Full Bench is that it is within the power of the High Court to examine and further examine the convict an that the law does not place any restriction upon this power. The Full Bench further observed that Section 423 of Criminal Procedure Cod gives wide powers to the appellate court. Additional evidence can be summoned by the appellate court under section 428 Cr. P.C. Section 540 enables any court at any stage of any inquiry, trial or proceeding to summon any person as a witness or examine any person in attendance though not summoned as a witness. The Court has got power t recall and re -examine any person already examined. This section applies not only to trial courts but also to appellate courts, for the word used are "any Court and "trial or other proceeding under the Code". The object of the legislature in giving these powers is not to constrict the functions of the appellate court or to fetter their discretion but to attain the ends of justice. There is no bar against an appellant court calling in an accused person and hearing him. It follows a fortiori that an accused can be heard in his own defence, and in view of these provision contained in Sections 423, 428 and 540 Criminal Procedure Code, it may seem some what astonishing to suggest that the High Court cannot call the accused appellant and hear what he may have to say in his defence.

(3.) A .I.R. 1940 Pat (Supra) relied upon by the learned counsel for the accused has got no application to the facts of the case. Although in A.I.R. 1925 Bombay 200 the view has been laid down that Section 342 of Cr P.C. does not apply to evidence recorded under section 428 of Cr. Procedure Code and that the section applies to original trials, yet their lordships did observe that there fight be cases where the accused could properly be questioned with regard to the additional evidence taken under the directions of the appellate court. Therefore this authority cannot be said to have laid down a broad proposition of law imposing absolute fetters on the courts to examine the accused in respect of evidence recorded under section 428.