Singh, J.@mdashThis appeal has been preferred by the State against the judgment of acquittal passed by the Special Judge, Bellary, in Spl. Case No. 27/1984, dated 31st March, 1987. The respondent was charged of having committed offences punishable u/s s 409 and 201 of the Penal Code and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and also u/s s. 52 and 53 of the Post Office Act.
2. We may only briefly state the facts of the case since we have decided to send back the matter to the trial Court for examination of the accused afresh u/s 313 of the Code of Criminal Procedure, hereinafter referred to as ''the Code''. The case of the prosecution was that the respondent was a Mail Guard in the Railway Mail Service working in the Hubli Division. On the 15th of October, 1983, his duty was to guard the mail from Hubli to Guntakal and back. It appears that on that day, when the respondent was on duty between Guntakal and Hubli, the mail consisted of gold, gold jewellery as well as cash sent by various parties from Madras to Belgaum. When the mail reached Belgaum and the bags were opened it was found that though seal of the outer bag was intact, the inner bags had been tempered with and the insured articles as per the list were not in the bag. Under these circumstances, the Head Sorting Assistant PW. 10 lodged a complaint with the Police Sub-Inspector in Cantonment Police Station, Belgaum, in Crime No. 205/1983 against unknown. The case was ultimately transferred to the Railway Police Station, Hubli, on 30th of October, 1983 in Crime No. 81/1983. Ultimately, the suspicion fell on the respondent. It is not necessary for us to refer to all the details of the investigation. But we may only indicate that respondent is said to have written to his Union Secretary, Ex. P. 17 in which an explanation was sought to be given that on the relevant date some outsiders had committed the mischief. It was sought to be explained that after the miscreants had left, the respondent had found certain things under in the bags which he had kept in his bag without opening them and looking into them. Those things had been kept in a trunk in his house. The prosecution also relied upon Ex. P. 37 said to have been made before PW. 24 in which a similar explanation was sought to be given. Ultimately, some recoveries were made from the house of the respondent at Rajnal, which according to the prosecution was at the instance of the respondent himself. Later, the brother of the respondent PW 23 also produced 5 gold bars Ex. P. 29 at Wadi. The various statements said to have been made by the respondent before different persons, as also the recoveries made pursuant to information given by him are some of the important circumstances upon which the prosecution relied to bring home the guilt of the accused.
3. After the prosecution closed its evidence, the accused was examined under S. 313 of the Code. On some of the important aspects of the matter, the questions framed were as follows :
"Q. 12. PW 11 Raghavendra Archak, Office Assistant, R.M.S., Hubli, has stated that he received the registered letter Ex. P. 17, addressed to the Secretary, R.M.S. Cooperative Society and found that the said letter was in your handwriting and on the contents of the said letter, he suspected that there was a theft of mail in transit and so, he handed over the letter to the Head Record Officer Sri Bhaskaran. What do you say ?
A. "False"
Q. 17. PW 22 S. D. Patil Kulkarni, Senior Post Master, Panaji, has stated that on 25-10-1983, when he was working as Assistant Superintendent of Post Offices, Dharwad Circle, he accompanied the Assistant Post Master General in charge of investigation Sri Govindan Kutti to Rajnal village along with you on the voluntary information given by you and after going to your house you brought a trunk from your house and opened the same in the present of panchas and from the said trunk, you took out two card board boxes containing 55 pairs of gold ear-rings and two bundles of notes containing 179 notes of Rs. 100/- denomination each and the same were seized under the panchanama, Ex. P. 35, What do you say ?
A. "False"
Q. 18. He has further stated that on 30-10-1983 he accompanied the D.S.P., Railways, to Wadi and you led them to your brother Mahadevappa, who produced five gold bars in the Railway Rest House at Wadi and the same were seized under the panchanama, Ex. P. 29. What do you say ?
A. "False"
Q. 24. Further, he has stated that he showed the letter, Ex. P. 17, to you and thereafter, he and his staff went to Nagur with you and there, your uncle told them that your wife had taken away the articles to Rajnal and you told them that you would produce all the articles at Rajnal. What do you say ?
A. "False"
Q. 25. He has also stated that at Hubli, you had already handed over the key of the trunk in which the articles were kept by you and at Rajnal, you produced the trunk and after opening the same, you took out the boxes containing the pairs of gold ear-rings and bundles of notes and the same were seized under a panchanamma. What do you say ?
A. "False"
Q. 27. Mumtaz Ahmed, the then D.S.P., Railways, has stated that on the basis of the voluntary information given by you, he visited Wadi along with PWs 22 and 24 and there, your brother Mahadev gave a statement and produced the gold ingots, M.Os. 3 and 4, and the same were seized under a panchanama. What do you say ?
A. "False"
It will appear from the questions put to the accused that several circumstances which appeared from the evidence on record and which related to even different dates have been included in one question and the explanation of the accused sought. In our view, the manner in which the accused has been questioned by the Court under S. 313 of the Code leaves much to be desired and the manner in which the accused has been examined, in our view, did not afford to the accused a just and fair opportunity to explain the circumstances appearing against him. Several distinct matters have been mixed up in a single question. Some of the important circumstances appearing against the accused have not been put to him with specificity. We are therefore of the view that the case should be sent back to the Court of the Special Judge, Bellary, for examination of the accused afresh under S. 313 of the Code.
4. In the instant case, we find that the accused has not been properly examined under S. 313 of the Code. We have noticed the same feature in large number of cases, which have come before us and therefore we take this opportunity of reminding the Courts of the duty cast upon them under S. 313 of the Code. The legal position is well settled and we are not laying down any new principle for the guidance of the Courts. We are merely restating the well settled law for we are constrained to observe that in large number of cases the examination of the accused is such as to reduce it to a mere formality. No effort is made to marshal the evidence on record and to put specific questions with regard to each circumstance against the accused. Often we find that a long series of facts are put in one question and the accused is asked to explain. In one question several circumstances are included, and it may be that the answer to some of them may be in the affirmative while to the others in the negative. The accused if he is not a very highly intelligent person with a sharp memory may not even remember all the circumstances put to him while giving his explanation. This may very often lead to miscarriage of justice. In some cases, we have noticed that the examination is as general as it can be and questions are put to the accused in such a manner that it is difficult to make out as to what circumstance was intended to be brought to his notice for which his explanation was sought.
5. Section 313 of the Code provides an opportunity to the accused "personally to explain any circumstance appearing in the evidence against him". The answers given by the accused may be taken into consideration in such trial. With a view to provide a fair opportunity to the accused, the law casts the obligation on the Court itself to frame the relevant questions so that the accused may have an opportunity to explain all circumstances appearing against him. To ensure fairness, the questioning is to be done by the Court without the aid of the Counsel and this at once emphasis the seriousness of the duty cast upon the Court. The Court must question the accused in relation to all incriminating circumstances appearing against the accused. Even if the accused was present when the witnesses deposed against him, the law still casts upon the court a duty to marshal the evidence and to cull out all the incriminating circumstances and question the accused in respect thereof so that the accused may offer his explanation. In a sense, the Court must also be satisfied that the accused has understood the circumstances appearing against him and gave whatever explanation he had in regard thereto. The Law Commission in its 41st Report thought that the stage has not yet been reached for the deletion of this provision and may be in future, with better education and better facilities for legal aid this matter may have to be reconsidered in the changed circumstances. As the law stands today, S. 313 of the Code provides not only the accused an opportunity to explain the circumstances appearing against him, but also the Court an opportunity to have a personal dialogue with the accused to elicit such explanation as he may have to offer, free from the fear of being trapped to make an embarrassing admission or statement or of being led to make any statement meant to fill up the lacuna in the prosecution case. The questioning by the Court must inspire this confidence in the accused that the questioning is meant for his benefit and not for the benefit of the prosecution. The purpose of the examination of the accused is only to elicit his explanation in regard to circumstances appearing against him and nothing more. The duty is cast upon the Court to see to it that this purpose is achieved and that the examination of the accused is not reduced to a mere formality.
6. In putting questions to an accused, the Courts must not forget that the questioning must be fair and concluded in a form which an ignorant or illiterate person will be able to appreciate and understand. The Courts cannot lose sight of the fact that in large number of cases the accused may not be fully equipped to follow and appreciate all that is said in Court against him. Moreover, while facing a criminal charge, the accused may be in a disturbed state of mind which may further cloud his understanding. It is therefore of essence that the questions put to the accused are couched in simple language and are specific. The examination of an accused u/s 313 of the Code is neither a test of his intelligence nor his memory. For the proper discharge of the duty cast upon the court, it is obliged first to marshal the evidence that has come on record. It must thereafter cull out all the circumstances appearing against the accused. The next step is to arrange the circumstances as far as possible in a chronological order. The last step is to frame appropriate questions and in doing so, as far as possible, each question must be specific and must relate to a specific circumstance appearing against the accused. It is improper to roll into the one question several circumstances appearing against the accused, and to seek his explanation. When such questions are framed and put to the accused, the whole purpose of the examination is defeated because such questions fail to pinpoint the attention of the accused to the specific circumstance for which his explanation is sought. The questions must therefore be couched in simple language which can be understood even by an illiterate person and must relate to a single circumstance as far as possible. The circumstances of the case must be put in chronological order so that he may be able to appreciate the prosecution case against him and the circumstances which the prosecution wishes to establish against him.
7. The practice of putting general questions to the accused must also be deprecated. The duty of the Court while examining an accused is not to put to him the entire evidence on record. The duty is to put specific circumstances of incriminating nature upon which the prosecution relies, and which appear from the evidence on record. The specificity must be in regard to the circumstances appearing against the accused. The Court cannot absolve itself of its duty by putting general questions without specifying the incriminating circumstances.
8. Very often, we have noticed that a question runs into half a typewritten page or even more. It is difficult for an accused to remember each and every fact mentioned in the question. It is therefore, necessary that the questions must not only be in simple language and specific but also must not be unnecessarily lengthy, so that the accused is not able to comprehend the question put to him. Needless to emphasise that the more incriminating the circumstance, the more specific should be the question put to the accused.
9. The way in which the questions to be put to the accused u/s 313, Cr.P.C. are being framed by the Magistrate and even by Sessions Judges makes us doubt whether they have themselves framed those questions, or whether they have been prepared by some staff member. If latter is the case, it should be deprecated.
10. It is our common experience that the evidence adduced in the case is not in the chronological order of events projected by the prosecution. Nevertheless, the lower courts start the questions right from the first witness and end up with the last witness. This type of questioning, putting forward the events in a haphazard manner, is likely to confuse the accused many a times and therefore it is necessary that the questions should be in the chronological order of events. Therefore, after the close of evidence the entire evidence shall be marshalled and arranged in a chronological order of events. For one single circumstance there should be one question. Each question shall not be in respect of more than one circumstances. If a single circumstance has been spoken to by a number of witnesses, it is not necessary to frame questions in respect of that circumstance as many times as the number of witnesses who have spoken with reference to the same. That circumstance spoken to by a number of witnesses could form the subject-matter of one single question.
11. Sub-s. (3) of Section 313 of the Code makes it clear that accused shall not render himself liable for punishment by refusing to answer such questions or by giving false answers to them.
If after framing the question the accused is asked as to "what" he has to say, a sensitive accused may take it that it is mandatory duty on his part to answer the question or that disobedience thereof shall entail a punishment. To dispel any such notion, it would be better if he is asked "whether" he wished to say anything in the matter.
12. In the performance of its duties, the court necessarily has to take up itself the responsibility of framing appropriate questions and this entails a comprehensive marshalling of the evidence brought on record. Before questioning an accused u/s 313, Cr.P.C., the Court must be quite clear in its mind as to the case sought to be proved by the prosecution and the circumstances upon which the prosecution wishes to rely. This involves hard work and therefore unless the Court is in full grip of the facts of the case, questioning of the accused u/s 313 of the Code should not be attempted. Unfortunately, as large number of cases have demonstrated before us, the responsibility cast upon the Courts is not being seriously undertaken in large number of cases and an impression has gained ground that the examination of the accused is a mere formality, which must be performed after the prosecution closes its evidence. We wish to dispel this impression from the mind of the Judges and Magistrates who are called upon to discharge a solemn duty under S. 313 of the Code.
13. With these observations, we remand this case to the Court of the Special Judge (Sessions Judge), Bellary, with a direction that it shall re-examine the accused afresh u/s 313 of the Code in the light of the observations made by us and thereafter proceed in accordance with law to conclude the trial and pronounce its judgment. The learned Counsel for the parties also agreed before us that having regard to the manner in which the accused has been examined in the instant case, this is the most fair course to follow so that no prejudice may be caused either to the accused or to the prosecution.
14. Accordingly, the judgment and order of the learned Special Judge, Bellary, in Spl. Case No. 27/1984, dated 31-3-1987, is set aside and the matter is remanded to it to proceed with the trial in accordance with the directions contained in this judgment.
15. Order accordingly.
