- (1.) J. Bhalla, J. This is a criminal revision under Sections 397/401, Cr. P. C. against the judgment and order, dated 9-8- 1983, passed by the Ilnd Additional Sessions Judge, Pratapgarh in Criminal Appeal No. 11 of 1981 Sita Ram v. State convicting and sentencing the revisionist appellant to un dergo 6 months R. I. and a fine of Rs. 1000/-and in default of payment to further go 6 months R. I. confirming the judgment and order dated 15-1-1981, passed by the Chief Judicial Magistrate, Pratapgarh in case No. 1060 of 1978 State v. Sita Ram under Section 7/16, PEA. Act.
(2.) THE learned counsel for the revisionist raised legal question that the prejudice has been caused to the revisionist as there is no compliance of Section 313, Cr. P. C. It has been further argued that what soever compliance has been made is not in the spirit of the provision of this Section. In support of this argument, he relied on the judgment reported in 1995 Lucknow Criminal Reports 78- Shitla Prasad v. State of U. P. particularly para 5 thereof which reads as follows: "so far as this contention goes, it is found from the record of the lower Court that under Section 313, Cr. P. C. , the first question which was put to the accused revisionist was "gawahan KA BAYAN HUWA, GAWAHAN APKE KHILAF GAWAHI KYUO DE RAHE HAIN. IS VISAY ME TUMHE KYA KAHANA HAL" THE second question was "safaidena H AI. " It would appear frtim the aforesaid questions that no material much less the incriminating material which was sought to be utilised against the ac cused revisionist was at all put to the accused-revisionist. In the present case, there was the report of the Public Analyst to establish that the. sample comprised of insect-infested matter which exceeded the prescribed maximum of 6%. If noth ing more could be done by the learned Magistrate, he could have at least put up a question to the accused-revisionist to this effect so as to seek his explanation. But nothing of this sort was done. In the circumstances, it has to be found that there was breach of the salient and salutary provisions of Section 313, Cr. P. C. " It has been contended on behalf of the revisionist that since the compliance of Section 313, Cr. P. C. has not been carried out, the whole trial vitiates and the order and punishment passed in appeal by the trial Court is liable to be quashed. It has been also indicated by the learned counsel that certain questions were asked from the ac cused before the charges were framed and certain questions were asked after the char ges were framed. According to the learned counsel for the revisionist, the questions asked before the charges are framed cannot be the questions in compliance of the Sec tion 313, Cr. P. C. for the reason that it was not based on evidence whereas the ques tions asked after the charges are framed are covered by the aforesaid judgment. Teamed counsel for the revisionist has also placed reliance on 1995 SCC (Crl) 60 Suresh Chandra Behri v. State of Bihar and has submitted that no prejudice has been shown to be caused to the accused. In the aforesaid judgment it has been held that: "it is no doubt true that the underlying ob ject behind Section 313, Cr. P. C. is to enable the accused to explain any circumstance appearing against him in the evidence and this object is based on the maxim audi alterem partem which is one of the principles of natural justice. It has always been regarded unfair to rely upon any incriminating circumstances without affording the accused an opportunity of explaining the said incriminating circumstances. The provisions in Section 313, therefore, make it obligatory on the Court to question the accused on the evidence and cir cumstance appearing against him so as to apprise him of the exact case which he is required to meet. But it would not be enough for the accused to show that he has not been questioned examined on a particular circumstance but he must show that such non-examination has actually and materially prejudiced him and has resulted in failure of justice. In other words in the event of any inadvertent omission on the part of the Court to question the accused on any incriminating cir cumstance appearing against him the same can not if so facto vitiate the trial unless it is shown that some prejudice was caused to him. In the present case no such objection was advanced either before the trial Court or the High Court. Secondly, no material was placed before the Court to show as to what and in what manner the prejudice if any, was caused to the accused persons or any of them. Apart from that it cannot be said that the accused was totally unaware of the substance of the ac cusation and charge against him or that he was not examined on the question of motive at all. In the facts and circumstances of the case it cannot be said that any prejudice was caused to the appel lant. "
(3.) IT has been rightly pointed out by the learned Public Prosecutor, Sri Jyotendra Misra that it is a complaint case and the evidence of the Food Inspector and other witnesses were recorded under Section 244, Cr. P. C. in the presence of the accused. How ever, subsequently, the charges were framed. In the circumstances, I am of the view that when the questions were asked from the accused before the charge was framed, the evidence was available before the trial Court. Therefore, the revisionist will not get any protection of non-com pliance of Section 313, Cr. P. C. . From the evidence on record, the questions asked before the charges were framed are as fol lows: Hindi Thereafter certain more questions were asked after the cross- examination. All these evidence have to be read together. IT is not open for the respondents to say that both the evidence has to be read inde pendently and separately. Specific relevant questions were asked in compliance of Sec tion 313 , Cr. P. C. which are as under: Hindi In the circumstances, it cannot be said that there is no compliance of Section 313,cr. P. C.;