Recording Section 313 CrPC Statement Before Cross-Examination Of Prosecution Witness Does Not Vitiate Trial: Karnataka High Court

"Nowhere in 313 statement, it is stated that only after the cross examination of prosecution witness, 313 statement has to be recorded." , High Court of Karnataka, in a significant ruling, held that the recording of an accused's statement under Section 313 of the Code of Criminal Procedure (CrPC) immediately after the substance of the accusation is stated—and prior to the cross-examination of the prosecution witness—does not vitiate the trial.

A single-judge bench of Justice H.P. Sandesh observed that while Section 313(1)(b) mandates examination after prosecution witnesses have been "examined," the statute does not explicitly require that such recording must only occur after the conclusion of cross-examination.

The court noted that when all incriminating material is already on record and the accused is subsequently given a fair opportunity to cross-examine the witness, no prejudice is caused. The bench emphasised that mere procedural technicalities cannot be a ground for interference in revisional jurisdiction if the core requirements of a fair trial are met.

The matter arose from a cheque dishonour dispute where the petitioner allegedly borrowed Rs. 2,50,000 from the respondent and issued a cheque that was returned for "insufficient funds." Despite the service of a statutory notice, the petitioner failed to reply or repay the amount, leading to his conviction by the Trial Court under Section 138 of the NI Act. This conviction and the resulting fine were later confirmed by the Appellate Court. The petitioner moved the High Court in revision, primarily arguing that the Trial Court committed a procedural illegality by recording his Section 313 statement on the same day the accusation was read out, before the complainant (PW-1) was cross-examined.

The primary question before the court was whether the recording of a Section 313 CrPC statement prior to the cross-examination of prosecution witnesses constitutes a violation of mandatory procedure. The court was also called upon to determine if such a timeline causes sufficient prejudice to the accused to warrant the setting aside of a concurrent conviction.

Interpretation Of Section 313(1)(b) CrPC Regarding Timing

The court undertook a detailed examination of Section 313 of the CrPC, which empowers the court to examine the accused to explain incriminating circumstances. Justice Sandesh pointed out that the proviso to the section is clear about the timing of the examination but does not impose the restriction suggested by the petitioner.

The bench observed that the law requires the statement to be recorded after the witnesses for the prosecution have been "examined" and before the accused is called for his defence. The court held that "examination" in this context refers to the evidence-in-chief or the material placed before the court.

"Nowhere in 313 statement, it is stated that only after the cross examination of prosecution witness, 313 statement has to be recorded."

No Prejudice Caused When Incriminating Material Is Already On Record

Addressing the facts of the case, the court noted that the Trial Court followed the Supreme Court's guidelines in Indian Bank Association vs. Union of India, treating the sworn statement of the complainant as examination-in-chief. All relevant documents, including the cheque and bank endorsements (Exhibits P1 to P5), were marked in the presence of the accused before the Section 313 statement was recorded.

The court found that since no further prosecution evidence was adduced after the statement was recorded, the accused had full knowledge of the case against him. The bench remarked that the petitioner was subsequently allowed to cross-examine PW-1, ensuring that his right to a fair trial was protected.

"Whatever the material placed before the Court, which discloses incriminating evidence against the accused, was put to him by recording the 313 statement on the very day itself and the same will not cause any prejudice."

Procedural Compliance In Summons Cases Under Section 251 CrPC

The High Court also highlighted the distinction in procedure for summons cases. Under Section 251 of the CrPC, when an accused appears in a summons case, the particulars of the offence must be stated, and they must be asked if they have a defence to make, without the necessity of framing a formal charge.

The bench noted that the Trial Court had duly recorded that the substance of the accusation was orally stated to the accused, who pleaded not guilty. The court held that the procedure adopted was consistent with the summary nature of NI Act trials.

Presumption Under Section 139 NI Act Remains Unrebutted

On the merits of the conviction, the court observed that the petitioner did not dispute the issuance of the cheque or the signature thereon. Applying the ratio in Rangappa vs. Mohan, the court held that a presumption arises in favour of the complainant that the cheque was issued for a legally enforceable debt.

The court noted that the petitioner failed to give a reply to the statutory notice and did not lead any defence evidence to rebut the presumption. Consequently, the court found no reason to interfere with the concurrent findings of the lower courts.

"When the presumption arises in favour of the complainant having produced the documents and when there is no serious dispute with regard to the issuance of cheque, the petitioner is not entitled for exercising of revisional jurisdiction."

The High Court concluded that the procedural objection raised regarding the timing of the Section 313 statement was a mere technicality that did not affect the legality of the conviction. Finding no perversity in the orders of the Trial Court or the Appellate Court, the bench dismissed the revision petition.

Date of Decision: 10 April 2024