Omar & Ors Vs. State of West Bengal  INSC 231 (8
K.J. (J) Shetty, K.J. (J) Ahmadi, A.M. (J)
1989 AIR 1785 1989 SCR (3) 735 1989 SCC (4) 436 JT 1989 (3) 316 1989 SCALE
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.
313--Examination of accused--Object of--Trial Court-Whether should consult or
hear counsel for the parties--Prosecution can invite attention of Court if any
incriminating circumstances left out.
Sessions trial of the appellants-accused under section 302/ 34, I.P.C., the
prosecution examined 34 witnesses 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 statements. Thereafter the Public Prosecutor
filed an application for re-examination of the first appellant under section
313 which was rejected by the Trial Court.
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 rectified the typographical errors, but refused to make other corrections
which would have changed the substantive part of the evidence.
State preferred a Criminal Revision in the High Court which stated that the
Trial Court has not followed proper procedure regarding correction or recorded
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.
the appeals, and reversing the order of the High Court,
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 once as required by sub-section (1), but if the correction
is such that the judge does net consider necessary, subsection (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
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]
object of section 313 is that the accused may he given an opportunity of
explaining each and every circumstance 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 examine 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.
there was no justification for the High Court for giving liberty to the
prosecution for re-examination of PW34 and expunging the examination of all the
accused under section 313. [742A-741H]
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]
APPELLATE JURISDICTION: Criminal Appeal Nos. 467-468 of 1989.
the Judgment and Order dated 27.4.1989 of the Calcutta High Court in Crl.
Revision No. 641 and 720 of 1989.
A.D. Giri, D.P. Ghosh, S.B. Pathak and B.S. Chauhan for the Appellants.
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
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.
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).
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 Criminal Procedure Code and recorded their statements.
On March 21, 1989, the public prosecutor filed an
application 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:
think the Ld. P.P. can argue all these points as the time of advancing
arguments 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 question 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 written 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.
it has been pointed out that in question No. 2 in place of P.W. 12 Abdullah Daweed
the words "P.W. 7 Md. Mein" should be written.
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-examination 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.
trial court, however, in the interest of justice rectified 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.
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
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.
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 Bench to some
other Bench in the City Sessions Court on the apprehension that there would not
be a fair trial in the case.
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
correction slip as referred to has not been pro739 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 typographical 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:
correction slip in 3 loose sheet could not be sent earlier as the case recorded
was forwarded in a hurry and the said correction 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
the claim for re-examination of the accused under sec. 3 13 of the Code, the
High Court said as follows:
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
testimony was not very clear on the point." .....
would have allowed ordinarily the application 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 concession 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 court to
hold the re-examination of PW 34 on a proper application being filed by the
prosecution 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 recording of evidence including
the re-examination of PW 34 is complete and we would direct the court below
further to hear out the submissions 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 congestion of the
this appeal, the accused have challenged the legality of the order of the High
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.
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.
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 evidence 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.
the Sessions trial the court has limited jurisdiction with regard to correction
of the recorded evidence of any witness. Section 273 provides:
in regard to such evidence 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.
the witness denies the correctness 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 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
necessary, sub-sec. (2) requires that a memorandum of the objection be made and
the Judge add his remarks, if any, thereto.
present case, the learned trial judge corrected all the typographical errors
which he considered necessary but refused to carry out the substantive part of
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.
not make a memorandum as the correction slip was unsigned and was not properly
filed. Now, since the correction 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.
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.
accused have been examined under sec. 3 13 of the Code.
prosecution did not at any stage move the trial judge for recalling PW 34 for
further examination. In these circumstances, the liberty reserved to the
prosecution to recall PW 34 for re-examination is undoubtedly uncalled for.
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 account 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 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 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
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
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.