State of Punjab V2.
Hari Singh and Ors.  INSC 337 (16 February 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2009 (Arising
out of (SLP (Crl.) No. 1508 of 2006) State of Punjab ....Appellant Versus Hari
Singh & Ors. ....
Dr. ARIJIT PASAYAT,
State of Punjab is in appeal against the judgment of a learned Single Judge of
the High Court of Punjab and Haryana, allowing the appeal filed by the present
respondents, who were accused nos.1 to 4. They faced trial for offence
punishable under Section 15 of the Narcotic Drugs and sychotropic Substances
Act, 1985 (in short the `Act'). Each was sentenced to undergo rigorous
imprisonment for ten years and to pay a fine of Rs.1,00,000/- each with default
stipulations. They were convicted by the learned Special Judge, Patiala, for
having been found to be in possession of 16 bags of poppy husk, each containing
to the prosecution case, on 9.7.1999, SI Krishan Kumar along with other police
officials and one PW Gurjail Singh was going from village Kadrabad to Gajewas
and when they were three kilometers away from the village, they noticed three
men and two women sitting on the bags lying between the surgarcane fields and a
heap of earth. On seeing the police party, these persons tried to slip away.
Sub Inspector Krishan Kumar stopped the vehicle and apprehended accused Puran
Singh, Hari Singh, Jaswinder Kaur and Charanjit Kaur while 5th accused (who was
identified as Amrik Singh by Gurjail Singh) slipped away. The Sub-Inspector
sent a wireless message to the police station and called S.P.Os Rajwinder Kaur
and Surinder Kaur to the spot and in their presence apprised the apprehended
persons that the police want to search the bags on which they had been sitting
and they could ask for search being conducted in the presence of a Gazetted
Officer or Magistrate. In response to this, the persons opted for being
searched by a Gazetted Officer. Their statements were recorded and through
wireless, S.I. Krishan Kumar requested DSP, Samana Shri Paramvir Gill to reach
at the spot and in his presence the bags were taken and grounds of arrest
served upon the appellants and eventually after receipt of adverse report from
the Chemical Examiner a challan was presented against them.
considering the materials and evidence on record, the trial Court came to the
conclusion that prima facie a case under Section 15 of the Act was made out
against the accused and as they pleaded not guilty, the prosecution was called
upon to lead its evidence. It examined SI Manjit Singh (PW-1), HC Rakesh Kumar
(PW-2), DSP P.S. Gill (PW-3), Inspector Krishan Kumar (PW-4), Gurtej Singh
(PW-5) and SI Gurcharan Singh (PW6).
conclusion of the evidence, the incriminating circumstances appearing in the
prosecution case were put to the accused, which denied the allegations and
asserted that they were innocent and have been falsely implicated in the case
by the police due to enmity. Puran Singh asserted that Inspector Paramjit Singh
who was posted as SHO, Police Station, Dirba, District Sangrur and ASI Jarnail
Singh are inimical towards him.
The police officials
had picked up his sons Amrik Singh, Baghel Singh and his nephew Paramjit Singh
on 16.4.1987. Aggrieved by this, Puran Singh had filed a writ petition of
habeas corpus and when this petition came up for hearing. Mr. M.L. Bharara,
Superintendent of High Court, who was appointed as Warrant Officer had also
been brought into Police Station by ASI Jarnail Singh and when the Warrant
Officer inquired about him, the Police Officials replied that he had given him
a thousand rupee as bribe for making a false report. Action under the Contempt
of Courts Act had been initiated against two officials and Inspector Paramjit
Singh had been fined with Rs.1000/- and in default of payment of fine he was
sentenced to undergo SI for a period of two months. Again, Gurusewak Singh, who
was DSP Railways had picked up his son and brother-in-law. His brother-in-law
was killed and in that case his son had appeared as a witness against the police
officials and writ petition had also been filed against them in the Punjab and
Haryana High Court. Due to this, Police Department is inimical towards him and
his family and had falsely implicated them in the case. The accused had brought
on record certified copy of the judgment passed by Shri G.S. Dhiman, Additional
Sessions Judge, Sangrur on 24.5.2003 and photocopy of the Criminal Contempt
Petition No.13 of 1987 marked D2 and closed the evidence.
Trial Court came to hold that the accusations were established beyond
reasonable doubt and, accordingly, convicted and sentenced the accused.
of the accused persons before the High Court was that there was no evidence to
show any conscious possession, which is a sine-qua-non for recording conviction
under Section 15 of the Act. Additionally, it was submitted that no question
regarding possession was put to any of them in their examination under Section
313 of the Code of Criminal Procedure, 1973 (in short, `the Code'). It was also
urged that the prosecution was the outcome of personal vandata by some
officials. The High Court accepted the stand of the appellants and directed
acquittal holding that there was no evidence of conscious possession and in any
event, the requisite questions under Section 313 Cr.P.C. were not put.
support of the appeal, learned counsel for the appellant submitted that the
High Court was wrong in its view both with regard to the conscious possession
aspect as well as the questioning under Section 313 Cr.P.C.
counsel for the respondents, on the other hand, submitted that whether there
was conscious possession is a question of fact and the High Court's judgment
does not call for any interference.
there was conscious possession had to be determined with reference to the
factual backdrop in each case. The fact which can be culled out from the
evidence on record is that the accused persons were sitting atop gunny bags
containing the contraband articles.
15 makes possession of contraband articles an offence.
Section 15 appears in
chapter IV of the Act which relates to offence for possession of such articles.
It is submitted that in order to make the possession illicit, there must be a
conscious possession. Section 15 deals with punishment for contravention in
relation to poppy straw.
is highlighted that unless the possession was coupled with requisite mental
element, i.e. conscious possession and not mere custody without awareness of
the nature of such possession, Section 15 is not attracted.
expression `possession' is a polymorphous term which assumes different colours
in different contexts. It may carry different meanings in contextually
different backgrounds. It is impossible, as was observed in Superintendent
& Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and Ors.
(AIR 1980 SC 52), to work out a completely logical and precise definition of
"possession" uniformally applicable to all situations in the context
of all statutes.
word `conscious' means awareness about a particular fact. It is a state of mind
which is deliberate or intended.
noted in Gunwantlal v. The State of M.P. (AIR 1972 SC 1756) possession in a
given case need not be physical possession but can be constructive, having
power and control over the article in case in question, while the persons whom
physical possession is given holds it subject to that power or control.
word `possession' means the legal right to possession (See Health v. Drown
(1972) (2) All ER 561 (HL). In an interesting case it was observed that where a
person keeps his fire arm in his mother's flat which is safer than his own
home, he must be considered to be in possession of the same. (See Sullivan v.
Earl of Caithness (1976 (1) All ER 844 (QBD).
possession is established the person who claims that it was not a conscious
possession has to establish it, because how he came to be in possession is
within his special knowledge. Section 35 of the Act gives a statutory
recognition of this position because of presumption available in law. Similar
is the position in terms of Section 54 where also presumption is available to
be drawn from possession of illicit articles. This position was highlighted in
Madan Lal and Anr. v. State of Himachal Pradesh (2003 (6) SCALE 483).
the present case, though, there was evidence regarding conscious possession,
but, unfortunately, no question relating to possession, much less conscious
possession was put to the accused under Section 313 Cr.P.C. The questioning
under Section 313 Cr.P.C. is not an empty formality.
few decisions of this Court need to be noticed in this context.
Bibhuti Bhusan Das Gupta & Anr. v. State of West Bengal (AIR 1969 SC 381),
this Court held that the pleader cannot represent the accused for the purpose
of Section 342 of the Code of Criminal Procedure, 1898 (hereinafter referred to
as `Old Code') which is presently Section 313 Cr.P.C.
313 Cr.P.C. reads as follows:
"313. Power to
examine the accused.--(1) In every inquiry or trial, for the purpose of
enabling the accused personally to explain any circumstances appearing in the
evidence against him, the court-- (a) may at any stage, without previously
warning the accused, put such questions to him as the court considers
(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:
Provided that in a
summons case, where the court has dispensed with the personal attendance of the
accused, it may also dispense with his examination under clause (b).
(2) No oath shall be
administered to the accused when he is examined under sub-section (1).
(3) The accused shall
not render him liable to punishment by refusing to answer such questions, or by
giving false answers to them.
(4) The answers given
by the accused may be taken into consideration in such inquiry or trial, and
put in evidence for or against him in any other inquiry into, or trial for, any
other offence which such answers may tend to show he has committed."
forerunner of the said provision in the Old Code was Section 342 therein. It
was worded thus:
"342. (1) For
the purpose of enabling the accused to explain any circumstances appearing in the
evidence against him, the court may, at any stage of any inquiry or trial,
without previously warning the accused, put such questions to him as the court
considers necessary, and shall, for the purpose aforesaid, question him
generally on the case after the witnesses for the prosecution have been
examined and before he is called on for his defence.
(2) The accused shall
not render himself liable to punishment by refusing to answer such questions,
or by giving false answers to them; but the court and the jury (if any) may
draw such inference from such refusal or answers as it thinks just.
(3) The answers given
by the accused may be taken into consideration in such inquiry or trial, and
put in evidence for or against him in any other inquiry into, or trial for, any
other offence which such answers may tend to show he has committed.
(4) No oath shall be
administered to the accused when he is examined under sub-section (1)."
with the position as the section remained in the original form under the Old
Code, a three-Judge Bench of this Court in Hate Singh Bhagat Singh v. State of
Madhya Bharat (AIR 1953 SC 468) that:
of the accused recorded by the Committing Magistrate and the Sessions Judge are
intended in India to take the place of what in England and in America he would
be free to state in his own way in the witness-box. They have to be 10 received
in evidence and treated as evidence and be duly considered at the trial."
thereafter, introduced Section 342-A in the Old Code (which corresponds to
Section 315 of the present Code) by which permission is given to an accused to
offer himself to be examined as a witness if he so chose.
Bibhuti Bhusan Das Gupta's case (supra) another three-Judge Bench dealing with
the combined operation of Sections 342 and 342-A of the Old Code made the
342-A only the accused can give evidence in person and his pleader's evidence
cannot be treated as his. The answers of the accused under Section 342 is
intended to be a substitute for the evidence which he can give as a witness
under Section 342-A. The privilege and the duty of answering questions under
Section 342 cannot be delegated to a pleader.
No doubt the form of
the summons show that the pleader may answer the charges against the accused,
but in so answering the charges, he cannot do what only the accused can do
The pleader may be
permitted to represent the accused while the prosecution evidence is being
taken. But at the close of the prosecution evidence the accused must be
questioned and his pleader cannot be examined in his place."
Law Commission in its 41st Report considered the aforesaid decisions and also
various other points of view highlighted by legal men and then made the report
after reaching the conclusion that:
(i) in summons cases
where the personal attendance of the accused has been dispensed with, either
under Section 205 or under Section 540-A, the court should have a power to
dispense with his examination; and (ii) in other cases, even where his personal
attendance has been dispensed with, the accused should be examined personally.
said recommendation has been followed up by Parliament and Section 313 of the
Code, as is presently worded, is the result of it. It would appear prima facie
that the court has discretion to dispense with the physical presence of an
accused during such questioning only in summons cases and in all other cases it
is incumbent on the court to question the accused personally after closing
prosecution evidence. Nonetheless, the Law Commission was conscious that the
rule may have to be relaxed eventually, particularly when there is improvement
in literacy and legal-aid facilities in the country. This thinking can be
discerned from the following suggestion made by the Law Commission in the same
"We have, after
considering the various aspects of the matter as summarised above, come to the
conclusion that Section 342 should not be deleted. In our opinion, the stage
has not yet 12 come for it being removed from the statute-book. With further
increase in literacy and with better facilities for legal aid, it may be
possible to take that step in the future."
position has to be considered in the present set-up, particularly after the
lapse of more than a quarter of a century through which period revolutionary
changes in the technology of communication and transmission have taken place,
thanks to the advent of computerisation. There is marked improvement in the
facilities for legal aid in the country during the preceding twenty-five years.
Hence a fresh look can be made now. We are mindful of the fact that a two-Judge
Bench in Usha K. Pillai (1993 (3) SCC 208) has found that the examination of an
accused personally can be dispensed with only in summons case. Their Lordships
were considering a case where the offence involved was Section 363 IPC. The
two-Judge Bench held thus: (SCC pp. 212-13, para 4) "A warrant case is
defined as one relating to an offence punishable with death, imprisonment for
life or imprisonment for a term exceeding two years. Since an offence under
Section 363 IPC is punishable with imprisonment for a term exceeding two years
it is a warrant case and not a summons case.
Therefore, even in
cases where the court has dispensed with the personal attendance of the accused
under Section 205(1) or Section 317 of the Code, the court cannot dispense with
the examination of the accused under clause (b) of Section 313 of the Code
because such examination is mandatory."
we cannot bypass the decision of a three-Judge Bench of this Court in Shivaji
Sahabrao Bobade v. State of Maharashtra (1973 (2) SCC 793) as the Bench has
widened the sweep of the provision concerning examination of the accused after
closing prosecution evidence. Learned Judges in that case were considering the
fallout of omission to put to the accused a question on a vital circumstance
appearing against him in the prosecution evidence. The three-Judge Bench made
the following observations therein: (SCC p. 806, para 16) "It is trite law,
nevertheless fundamental, that the prisoner's attention should be drawn to
every inculpatory material so as to enable him to explain it. This is the basic
fairness of a criminal trial and failures in this area may gravely imperil the
validity of the trial itself, if consequential miscarriage of justice has
flowed. However, where such an omission has occurred it does not ipso facto
vitiate the proceedings and prejudice occasioned by such defect must be
established by the accused. In the event of evidentiary material not being put
to the accused, the court must ordinarily eschew such material from
consideration. It is also open to the appellate court to call upon the counsel
for the accused to show what explanation the accused has as regards the circumstances
established against him but not put to him and if the accused is unable to
offer the appellate court any plausible or reasonable explanation of such
circumstances, the court may assume that no acceptable answer exists and that
even if the accused had been questioned at the proper time in the trial court
he would not have been able to furnish any good ground to get out of the
circumstances on which the trial court had relied for its conviction."
above approach shows that some dilution of the rigour of the provision can be
made even in the light of a contention raised by the accused that
non-questioning him on a vital circumstance by the trial court has caused
prejudice to him. The explanation offered by the counsel of the accused at the
appellate stage was held to be a sufficient substitute for the answers given by
the accused himself.
is the object of examination of an accused under Section 313 of the Code? The
section itself declares the object in explicit language that it is "for
the purpose of enabling the accused personally to explain any circumstances
appearing in the evidence against him". In Jai Dev v. State of Punjab
(AIR1963 SC 612) Gajendragadkar, J. (as he then was) speaking for a three-Judge
Bench has focussed on the ultimate test in determining whether the provision
has been fairly complied with. He observed thus:
test in determining whether or not the accused has been fairly examined under
Section 342 would be to inquire whether, having regard to all the questions put
to him, he did get an opportunity to say what he wanted to say in respect of
prosecution case against him. If it appears that the examination of the accused
person was defective and thereby a prejudice has been caused to him, that would
no doubt be a serious infirmity."
it is well settled that the provision is mainly intended to benefit the accused
and as its corollary to benefit the court in reaching the final conclusion.
the same time it should be borne in mind that the provision is not intended to
nail him to any position, but to comply with the most salutary principle of
natural justice enshrined in the maxim audi alteram partem.
"may" in clause (a) of sub-section (1) in Section 313 of the Code
indicates, without any doubt, that even if the court does not put any question
under that clause the accused cannot raise any grievance for it. But if the
court fails to put the needed question under clause (b) of the sub-section it
would result in a handicap to the accused and he can legitimately claim that no
evidence, without affording him the opportunity to explain, can be used against
him. It is now well settled that a circumstance about which the accused was not
asked to explain cannot be used against him.
the situation to be considered now is whether, with the revolutionary change in
technology of communication and transmission and the marked improvement in
facilities for legal aid in the country, is it necessary that in all cases the
accused must answer by personally remaining present in court. We clarify that
this is the requirement and would be the general rule. However, if remaining
present involves undue hardship and large expense, could the court not
alleviate the difficulties. If the court holds the view that the situation in
which he made such a plea is genuine, should the court say that he has no
escape but he must undergo all the tribulations and hardships and answer such
questions personally presenting himself in court. If there is other accused in
the same case, and the court has already completed their questioning, should
they too wait for long without their case reaching finality, or without
registering further progress of their trial until their co-accused is able to
attend the court personally and answer the court questions? Why should a
criminal court be rendered helpless in such a situation?
one category of offences which is specifically exempted from the rigour of
Section 313(1)(b) of the Code is "summons cases". It must be remembered
that every case in which the offence triable is punishable with imprisonment
for a term not exceeding two years is a "summons case".
Thus, all other
offences generally belong to a different category altogether among which are
included offences punishable with varying sentences from imprisonment for three
years up to imprisonment for life and even right up to death penalty. Hence
there are several offences in that category which are far less serious in
gravity compared with grave and very grave offences.
Even in cases
involving less serious offences, can not the court extend a helping hand to an
accused who is placed in a predicament deserving such a help?
243(1) of the Code enables the accused, who is involved in the trial of warrant
case instituted on police report, to put in any written statement. When any
such statement is filed the court is obliged to make it part of the record of
the case. Even if such case is not instituted on police report the accused has
the same right (vide Section 247). Even the accused involved in offences
exclusively triable by the Court of Session can also exercise such a right to
put in written statements (Section 233(2) of the Code). It is common knowledge
that most of such written statements, if not all, are prepared by the counsel
of the accused. If such written statements can be treated as statements
directly emanating from the accused, hook, line and sinker, why not the answers
given by him in the manner set out hereinafter, in special contingencies, be
afforded the same worth.
think that a pragmatic and humanistic approach is warranted in regard to such
special exigencies. The word "shall" in clause (b) to Section 313(1)
of the Code is to be interpreted as obligatory on the court and it should be
complied with when it is for the benefit of the accused. But if it works to his
great prejudice and disadvantage the court should, in appropriate cases, e.g.,
if the accused satisfies the court that he is unable to reach the venue of the
court, except by bearing huge expenditure or that he is unable to travel the
long journey due to physical incapacity or some such other hardship, relieve
him of such hardship and at the same time adopt a measure to comply with the
requirements in Section 313 of the Code in a substantial manner. How could this
the accused (who is already exempted from personally appearing in the court)
makes an application to the court praying that he may be allowed to answer the
questions without making his physical presence in court on account of
justifying exigency the court can pass appropriate orders thereon, provided
such application is accompanied by an affidavit sworn to by the accused himself
containing the following matters:
(a) A narration of
facts to satisfy the court of his real difficulties to be physically present in
court for giving such answers.
(b) An assurance that
no prejudice would be caused to him, in any manner, by dispensing with his
personal presence during such questioning.
(c) An undertaking
that he would not raise any grievance on that score at any stage of the case.
the court is satisfied of the genuineness of the statements made by the accused
in the said application and affidavit it is open to the court to supply the
questionnaire to his advocate (containing the questions which the court might
put to him under Section 313 of the Code) and fix the time within which the
same has to be returned duly answered by the accused together with a properly
authenticated affidavit that those answers were given by the accused himself.
He should affix his signature on all the sheets of the answered questionnaire.
However, if he does not wish to give any answer to any of the questions he is
free to indicate that fact at the appropriate place in the questionnaire (as a
matter of precaution the court may keep photocopy or carbon copy of the
questionnaire before it is supplied to the accused for an answer). If the
accused fails to return the questionnaire duly answered as aforesaid within the
time or extended time granted by the court, he shall forfeit his right to seek
personal exemption from court during such questioning. The Court has also to
ensure that the imaginative response of the counsel is intended to be availed
to be a substitute for taking statement of accused.
our opinion, if the above course is adopted in exceptional exigency it would
not violate the legislative intent envisaged in Section 313 of the Code.
above position was indicated in Basav Raj R Patil v. State of Karnataka (2000
(8) SCC 740).
is true that in Chandu Lal Chandraker's case (supra) two Hon'ble Judges have
taken a view supporting that of the appellant. It appears that in said case no
reference was made to Bibhuti Bhusan Das Gupta's case (supra).
in the background of principles set out in Basav Raj R. Patil's case (supra)
the inevitable conclusion is that the High Court's impugned order does not
suffer from any infirmity to warrant interference.
the accused was examined under Section 313 Cr.P.C., the essence of accusation
was not brought to his notice, more particularly, that possession aspect, as
was observed by this Court in Avtar Singha and Ors. v. State of Punjab (2002
(7) SCC 419). The effect of such omission vitally affects the prosecution case.
being the position, we find no merit in this appeal which is, accordingly,
dismissed. However, certain directions given by the High Court for initiation
of action against some officials could not have been given while dealing with
an appeal and, therefore, stand expunged. The appeal is dismissed except for a
direction for expulsion of the direction for initiation of departmental action.
(Dr. ARIJIT PASAYAT)