Application u/s S.313 CrPC

A broad approach to drafting of any Application / Petition / Complaint may be undertaken in three chronological “Heads” –

1.      Reliefs prayed for / claimed;

2.      Grounds for Reliefs prayed for / claimed; (both factual and legal);

3.      Narration of facts substantiating the said grounds.

Further, there may be narration of such facts in the   beginning of the draft, which would lay foundation for “material facts of the case”.

Grounds for Reliefs prayed for / claimed implies (a) the essence / conclusion of material facts; and (b) other legal provisions which supports the reliefs prayed for / claimed.

IN THE METROPOLITANS MAGISTRATES _____ COURT

AT ESPLANADE, MUMBAI

C.C. No. ________/ SS / 2015

______________________                                        ..Complainant

Versus

___________________                                              ..Accused                   

MISC. APPLICATION ON BEHALF OF ACCUSED HEREINABOVE

MAY IT PLEASE YOUR HONOUR

The Accused hereinabove most respectfully submit as under –

(1) The Complainant hereinabove has filed a Complaint u/s 200 of CrPC.

(2) The accused submits that the Complainant has misused the judicial process, and has misled the Hon’ble Court.

(3) The accused most respectfully urge the Hon’ble Court to exercise their powers u/s 313(1)(a) of CrPC, 1973, and be pleased to permit the accused to show palpable infirmity in the purported evidences relied upon by the Complainant, on the basis of which, the Hon’ble Court have pleased to issue summons u/s 204.

(4) The accused would submit that Section 313 of CrPC, 1973, appears to be most salutary provision to protect innocent persons who are falsely charged / accused as having committed an offence.

The said section enables the accused person to personally move an Application or make a formal request, before the concerned Magistrates Court, to allow him to make due representation before the Court, for to present to the Court any credible evidence he has to show his innocence, or for to impeach the credibility of evidence appearing against him in the Complaint or Chargesheet, and seeking immediate acquittal.

The said Application or formal request may be made at any stage of the trial or may be made even at the stage of Inquiry contemplated u/s 202 of CrPC, 1973. The representation should be personally by accused person and not through Advocate.

If the Magistrate is satisfied, he may acquit the accused person, without any trial, of course, after giving an opportunity of hearing to the Complainant / State prosecution. The Magistrate may also impose heavy cost u/s 250 of CrPC, 1973, upon the Complainant / State prosecution, for making false complaint or for suppressing material facts / documents.

(5) Fortunately, there is a recent Apex Court ruling on section 313. In the said ruling, although the issue before the Court was not the examination of accused before evidences are led, yet the Hon’ble Court have unambiguously stated that the said powers may be exercised at any stage of the inquiry or trial [2015 (1) SCC 496, Para 10].

2015 (1) SCC 496

Para 9: The power to examine the accused is provided in Section 313 Cr.P.C. which reads as under:-

"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 necessary;

(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 himself 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.

(5). The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section."

Para 10: There are two kinds of examination under Section 313 Cr.P.C. The first under Section 313 (1) (a) Cr.P.C. relates to any stage of the inquiry or trial; while the second under Section 313 (1) (b) Cr.P.C. takes place after the prosecution witnesses are examined and before the accused is called upon to enter upon his defence. The former is particular and optional; but the latter is general and mandatory. In Usha K. Pillai V/s. Raj K. Srinivas & Ors., (1993) 3 SCC 208, this Court held that the Court is empowered by Section 313 (1) clause (a) to question the accused at any stage of the inquiry or trial; while Section 313(1) clause (b) obligates the Court to question the accused before he enters his defence on any circumstance appearing in prosecution evidence against him.

(6) There is also ruling of Bombay High Court in this regard, wherein Justice R C Chavan, in his 187 page judgment (Unreported), extensively dealt with the issue of false complaints, speedy justice, extensive use of many of the provision of Criminal Procedure Code to reduce the length of litigation, when inherent powers of the High Court may be invoked u/s 482, etc. [Judg dated 22nd March, 2012] [Paras 88 to 90]

Bombay High Court, in the case of Price Waterhouse Coopers versus State of Maharashtra primarily dealt with exercise of the powers of the High Court under Section 482, and thus also dealt with all the relevant and concerned provisions of CrPC, 1973.

In the said judgment, at Para 90, the Court has said that the Accused can make a due representation before the trial Court u/s 313 of the CrPC, to prove his innocence and so as to avoid the hardship and agony of facing the trial.

The Hon’be Bombay High Court, in the said para, inter alia, said – “Section  313, of the Code enables a trial court to examine, the  accused  on  the  circumstances  appearing, against  him  in  evidence  at  any  stage,  apart, from the duty to undertake such examination at, the  end  of  the  trial.  If  the  courts  make, proper  use  of  this  power,  the  accused  could, have  an  opportunity  to  say  something  in  his, defence, should he so wish, which may curtail, trial”. The portions Paras 88, 89 and 90 are reproduced –

Para 88. It  was  also  urged  that  recourse  to inherent powers becomes necessary as the trial courts  have  no  power  to  look  into unimpeachable  material  which  could  show  that trial is unwarranted & that such material can be noticed only by the High Court in exercise of  inherent  powers.  This  argument  does  not seem to be jurisprudentially sound. The right of the accused to silence need not be equated to obligation  to  remain  silent.  It  is  not clear  as  to  how  a  person  who  is  to  face  a trial  could  be  forced  to  remain  silent. Historical  basis  for  the  right  of  silence recognized in a person accused is the torture which  he  was  subjected  to  in  making confessions. Therefore he cannot be forced to speak.  He  was  also  not  to  be  forced  to disclose  his  defence  in  advance  of  trial  to prevent  his  being  prejudiced  by  the prosecution bringing up fresh evidence to book him, rather than put him to trial on the basis of evidence collected before a charge-sheet is filed. But when he has the protection of the court, should he so desire, why could he not state his defence? There is a good chance that trial  may  be  obviated  and  in  any  case curtailed if he is, not forced, but permitted to speak out. As an illustration one may take case of voluntarily causing hurt. The accused may admit that he did cause hurt but set up right of private defence, in which case need to record much of evidence could be curtailed.

In  any  case  it  defies  logic  that  an  accused who cannot be heard till a charge is framed by courts  below  has  the  same  right  when  before the  High  Court  on  the  specious  plea  that  if there  is  no  provision  in  the  code  to  do something, it can be done by invoking inherent powers.

Para 89. The  learned  senior  counsel  for  the applicants  submitted  that  this  issue  is  no longer res integra and a Three Judge Bench of the  Supreme  Court  has  already  ruled  to  the contrary in  State of Orissa v. Debendra Nath Padhi, reported in (2005) 1 SCC 568.

Para 90. Even so it may not be necessary to gag, persons accused in a bulk of matters which are landing up in this court from processes issued, for offence  punishable  under  section  138  of, the Negotiable Instruments Act. In these cases, the complainant files an affidavit in lieu of, his  evidence  &  since  a  full  bench  of  this, court has already ruled that such affidavit is, a  substitute  for  verification  to  be  recorded, when a complaint is filed, even at the stage, of  recording  plea,  there  is  evidence     or, circumstances  appearing  in  evidence-  against, the  accused.  Evidence  does  not  mean  only  a, completed deposition after cross examination, since  there  could  be  many  cases  where  there, may not be any cross examination. In warrant, trials  instituted  on  complaints  at  the  stage, of  framing  of  charge  there  is  already, precharge  evidence  of  the  complainant, available     which  has  to  be  of  such  quality, that  if  un-rebutted,  it  would  warrant, conviction  of  the  accused.  In  all  types  of trial by using the provisions of Sections 292, to  296  of  the  Code,  there  could  be  evidence, against  the  accused  even  before  oral, examination  of  witnesses  begins.  Section  313, of the Code enables a trial court to examine, the  accused  on  the  circumstances  appearing, against  him  in  evidence  at  any  stage,  apart, from the duty to undertake such examination at, the  end  of  the  trial.  If  the  courts  make, proper  use  of  this  power,  the  accused  could, have  an  opportunity  to  say  something  in  his, defence, should he so wish, which may curtail, trial. Since first part of section 313 of the, Code  is  as  yet  not  rendered  a  dead  letter, there is no reason why this tool may not be, used.  If intelligently used a large number of, litigants may not be required to rush to this, court.

(7)   In this background, the Accused submits that ________

(8)   The Accused further states that there is not an iota of evidence on record against these Accused to suggest their involvement in the alleged offence u/s _____

(9)   The Accused therefore, most respectfully, pray that –

(a) These Accused be acquitted of the charge;

(b) Any other relief as this Hon’ble Court deems fit having regard to facts and circumstances of the case.

AND FOR THIS ACT OF KINDNESS THE APPLICANTS IN DUTY BOUND SHALL EVER PRAY.

Dated this _____ day of _____ 2015

Advocates for the Accused

Substantive law

http://thepracticeoflawjalan.blogspot.in/2012/09/examination-of-accused-section-313.html

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