Judgment:
ORDER
R. Basant, J.
1. What is the Correct procedure to be followed, by a Sessions Court after closing fee evidence of the prosecution under Section 231 of the Code of Criminal Procedure, 1973 (for short 'the Cr.PC.') and before proceeding to hear arguments under Section 234 Cr.P.C? What is the effect of non-compliance with the mandate of Sections 232 and 233 Cr.P.C? Are the procedural stipulations mandatory? As soon as an omission/infraction of these provisions occurs, does it ipso facto vitiate the proceedings obliging the superior courts to set aside the verdict and concede acquittal to the accused or remand the case to the Sessions Court to recommence proceedings from that vitiated stage? Is proof of prejudice or possibility thereof in the facts of the given case to be insisted before such verdicts are set aside? These are the questions that arise for consideration before us in this Crl.R.P.
2. The Assistant Sessions Judge in a prosecution under Section 306 IPC rendered a verdict of guilty, conviction and sentence, The challenge before the Sessions Court was rejected and the appeal was dismissed, The accused has challenged the concurrent verdict of guilty, conviction and sentence in this revision petition. The matter went before the Bench of the Chief Justice and the Hon'ble Chief Justice Mr. Justice V.K. Bali felt that the question whether the trial is vitiated for mere non-observance of the procedure prescribed under Section 232 Cr.P.C deserves consideration by a Division Bench for an authoritative pronouncement Accordingly, the matter was referred to a Division Bench by order of reference dated 15/11/2006 under Section 3 of the Kerala High Court Act
3. A Division Bench considered the question and perceived an apparent conflict between the decisions of the Division Bench in Suresh v. State of Kerala : 2006 (1) KLT 78 and Ramachandran v. State of Kerala 2005 (3) KLT 89 at page 75, Accordingly the Bench passed the order of reference dated 12/12/06 and thus the matter has come up before us for consideration.
4. A brief reference to specific facts appears to be necessary. The petitioner married deceased Sakina on 27/3/88, On 26/7/88 the said Sakina set herself ablaze at the matrimonial home. She succumbed to burn injuries on 11/8/88 - well within the period of 7 years after the marriage, A crime was registered. Dying declaration of the deceased was recorded, in her dying declaration, she implicated the petitioner specifically. Investigation was conducted. Final report was filed. Cognizance was taken. The case was committed to the Court of Session. The case was made over to the Assistant Sessions Judge, Charges were framed. The accused denied the charges levelled against him. Thereupon, the prosecution examined P.Ws.1 to 14 and proved Exts.Pl to P9, The prosecution evidence was closed under Section 231 Cr.P.C. The accused was later examined under Section 313 Cr.P.C. After the relevant incriminating circumstances were put to the accused under Section 313 Cr.P.C. the accused was asked if he had anything further to state. He gave a statement. After that statement was recorded., the learned Assistant Sessions Judge proceeded to ask the accused whether he has any defence evidence. Accused stated that he wants to adduce evidence and thereafter D.Ws. 1 to 3 were examined by him. Exts.Dl to D5 were also marked on the side of the accused- The court thereafter proceeded to hear arguments under Section 234 Cr.P.C. and the verdict of guilty and conviction was pronounced on 2678/94, After hearing the accused on the question of sentence, the sentence was pronounced on 30/8/94. For the purpose of claraty, we give below the sequence of events as recorded in the order sheet maintained by the learned Assistant Sessions Judge for the relevant period i.e., 27/7/94 to 30/8/94:
27.7.94 Accused present CW11 examined as PW14, Ext.P9 marked.Evidence closed. For 313 to 4.8.94.4.8.94 Accused present Questioned Under Section 313 Cr.P.C.For defence evidence to 10.8.94.10.8.94 Accused present DW1 to DW3 examined. Ext.D2 to 5 marked.Defence evidence closed. For hearing 16.8.94.16.8.94 Accused present For hearing 18.8.94.18.8.94 Accused present For hearing adjourned at request 19.8.94.19.8.94 Accused present Heard both sides, For judgment 24.8.S4.24.8.94 Accused present Judgment not ready. Adjourned for judgment to26.8.94.26.8.94 Accused present Accused guilty Under Section 306 IPC,Accused heard on the question of sentence. Sentence to bedecided and imposed on 30.8,94, In the meantime the accusedwill be detained in to Sub Jail at Thalassery on JudicialCustody, Call on 30.8.94.30.8.94 Accused produced from Sub jail judgment pronounced.
5. At the outset, we must take note of the fact that there is no contention whatsoever that the accused is entitled for an acquittal under Section 232 Cr.P.C. There is no dispute on that aspect. This is certainly not a case where there is no evidence at ail in which alone an accused can claim acquittal under Section 232 Cr.P.C.
6. The second circumstance of relevance is that the accused was given and he did avail the opportunity to adduce all evidence which he wanted to adduce. This is not a case where the accuse was disabled from adducing any defence evidence that he wanted to adduce. The accused does, of course, complain about the infraction of the stipulations of Sections 232 and 233 Cr.P.C. but it is important to note that the two circumstances referred above are not disputed or contested.
7. What then is the grievance of the accused/revision petitioner? The learned Counsel for the revision petitioner contends that there has been breach of the mandatory duty on the part, of the court to make note either in the order sheet or in the impugned judgment or anywhere in the proceedings as to whether an order of acquittal can be recorded under Section 232 Cr.P.C. There is total non-application of mind of the Sessions Court specifically on this aspect, contends the learned Counsel for the petitioners.
8. Secondly, it is contended that there is a mandatory obligation on the part of the court to call upon the accused to enter on his defence and adduce evidence in support of his defence under Section 232 Cr.P.C. Though at the end of the 313 examination the accused has been asked whether he has any defence evidence to adduce, there is nothing to show that the accused was 'called upon to enter on his defence and adduce any evidence he may have in support thereof under Section 233(1) Cr.P.C. The learned Counsel argues that these stipulations of Sections 232 and 233 Cr.P.C. are mandatory. The breach of those stipulations does ipso facto vitiate the trial and whether any actual prejudice had been caused or not is irrelevant. The very fact that there has been breach of the mandatory procedure prescribed under Sections 232 and 233 Cr.P.C must entail setting aside of the impugned judgment and issue of a direction to continue the proceedings from the stage from which the proceedings are vitiated. We did not hear the learned Counsel advancing an argument that the accused is entitled for an order of acquittal straightaway on the basis of such vitiated procedure followed,
9. We feel that it would be only apposite to refer to the law as it stood prior to the enactment of the Code of Criminal Procedure, 1973 as also the provisions of the Code enacted in 1973. Sections 289 and 290 of the Code of Criminal Procedure, 1898 (referred to as the Old Code hereafter) dealt with, the subject matter which is now dealt with in Sections 232, 233 and 234 Cr.P.C. Sections-289 and 290 of the old Code read thus:
289.(1) When the examination of the witnesses for the prosecution and the examination (if any) of the accused are concluded the accused shall be asked whether he means to adduce evidence.
(2) If he says that he does not, the prosecutor may sum up his case; and, if the Court considers that there is no evidence that the accused committed the offence, it may then in a case tried by the Judge himself, record a finding, or, in a case tried by a jury, direct the jury to return a verdict of not guilty,
(3) If the accused, or any one of several accused, says that he means to adduce evidence, and the Court considers that there is no evidence that the accused committed the offence, the Court may then, in a case tried by the Judge himself, record a finding, or, in a case tried by a jury, direct the jury to return a verdict of not guilty.
(4) If the accused, or any one of several accused, says that he means to adduce evidence, and the Court, considers that there is evidence that he committed the offence, or if, on his saying that he does not mean to adduce evidence, the prosecutor sums up his case and the Court considers: that, there is evidence that the accused committed the offence, the Court shall call on the accused to enter on his defence.
290, The accused or his pleader may then open his case, stating the facts or law on which he intends to rely and making such comments as he thinks necessary on the evidence for the prosecution. He may then examine his witnesses (if any) and after their cross-examination and re-examination (if any) may sum up his case.
Sections 232, 233 and 234 of the present Code read thus:
232. Acquittal-- If after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal.
233- Entering upon defence.- (1) Where the accused is not acquitted under Section 232 he shall be called upon to enter on his defence and adduce any evidence he may have in support thereof.
(2) If the accused puts in any written statement, the Judge shall file it within the record.
(3) If the accused, applies for the issue of any process for compelling the attendance of any witness or the production of any document or thing, the Judge shall issue such process unless he considers, for reasons to be recorded, that such application should be refused on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice.
234. Arguments,- When the examination of the witnesses (if any) for the defence is complete, the prosecutor shall sum up his case and the accused or his pleader shall be entitled to reply:
Provided that where any point of law is raised by the accused or his pleader., the prosecution may, with the permission of the Judge, make his submissions with regard to such point of law.
10. A careful reading of Sections 289 and 290 of the 1898 Code and Section 232 - 234 of the Cr.P.C., reveals that there is no material difference in the procedure prescribed, Under the old Code also after the prosecution evidence was closed and the accused was examined under Section 342 the court was obliged to consider whether it was a case where 'there is no evidence that the accused committed the offence' This obligation to consider the point as per Section 289(1) arose only after the accused is asked 'whether he means to adduce evidence'. Sub-section (2) deals with the situation if the accused says that he does not want to adduce evidence. Sub-section (3) deals with the situation where the accused states that he means to adduce evidence. In either case the Sessions Court had to consider whether it is a case where 'there is no evidence that the accused committed the offence'. If there is no evidence, the court must record the finding of not guilty (or in a case tried by a jury, direct the jury to return a verdict of not guilty).
11. Section 289(4) deals with the situation where the court is of the opinion that there is evidence that the accused has committed the offence. Clauses 2 and 3 deal with the situation where there is no evidence. Clause 4 deals with the situation where there is evidence. If there is no evidence, a verdict of not guilty has to be entered straightaway under Clauses 2 and 3, If there is evidence the court must under Sub-section (4) proceed further and call upon the accused to enter on his defence.
12. In the new Code Sections 232 - 234 extracted above deal with the situation. We will now note the similarities and dissimilarities in the relevant provision under the old Code and the present Code, While under Section 289(1) of the old Code there was an obligation, after the examination of the accused to ask the accused whether he means to adduce evidence, such requirement is not there at all under Sections 232 - 234 Cr.P.C. These provisions in the new Code nowhere speak of a specific obligation on the court to ask the accused whether he means to adduce any evidence- tinder the new Code there is only an obligation under Section 233 on the court, to call upon the accused to enter on his defence and adduce any evidence he may have:
13. Under Section 289(2) to (4) of the old Code also there was a specific obligation for the court before calling upon the accused to enter on his defence to consider whether the proceedings against the accused are liable to be terminated on the ground that there is no evidence. Whatever be the answer to the question asked under Section 289(1) of the old Act as to whether he means to adduce evidence;, this obligation to consider termination of proceedings on the ground that there is no evidence is clearly there in Section 289(2) to (4) of the old Code. Under the amended Code also this obligation undoubtedly is there.
14. A comparative study of Sections 289 and 290 of the old Code on the one side and Sections 232 - 234 of the new Code on the other clearly reveals that the statutory purpose and object are the same. An accused should not be compelled to undergo the trauma of a continued criminal trial if he does not deserve to stand the same. In a case where there is no evidence whatsoever against him he should not be obliged to enter on his defence. He deserves to be relieved of the trauma of the criminal prosecution at the earliest if there is no evidence against him- At the stage of framing charge under Section 227/228, detailed consideration is, of course, not there. At that stage evidence is not there and only the statements made at the stage of investigation are there before court. The Court can only contemplate and anticipate the probable evidence. But after the prosecution evidence is adduced if there is no evidence whatsoever, the accused must be relieved forthwith of his obligation to continue to face the trial This evidently is the statutory objective, scheme and purpose under the provisions of the old Code as well as the new Code.
15. Why then were the sections rephrased and altered? Does the amendment signify any material change in the law? The answer has to be emphatically in the negative. The statutory provisions in the old Code were perhaps clumsy and inelegantly worded. The legislature in its quest for perfection had decided to rephrase the provisions. Before the court considers whether it is a case where there is no evidence against the accused and calls upon the accused to enter on his defence it was unnecessary to ascertain whether the accused wants to adduce any evidence in defence. The provisions of Sections 289(2) to (4) of the old Code clearly show that whatever be the answer to that question under Section 289(1) that does not make any change in the nature of proceedings to follow. Whether the accused states that he has defence evidence or does not have defence evidence, the court was obliged to consider whether proceedings deserve to be terminated on the ground that there is no evidence against the accused. If that be so, questioning the accused on that aspect before taking a decision on that point - as to whether it is a case where there is no evidence against the accused, was certainly unnecessary. That obligation under Section 289(1) had unnecessarily obliged the legislature to word Section 289(2) to (4) in such a manner. The purpose evidently was to avoid inelegance and clumsiness and not to alter the law at all. The obligation of the court to terminate the proceedings against the accused if there is no evidence against him is clearly stated in the old Code as well as the new Code. No change in law on that aspect is perceived- None was intended also, it appears to us to be evident.
16. Under the old Code as well as under the present Code there is an obligation on the court to direct the accused to enter on defence. Though under the old Code there is a specific obligation on the part of the court to ascertain whether the accused wants to adduce any defence evidence under Section 289(1), such an obligation to ask that question appears to have been dispensed with under Sections 232 - 234, Both under the old Code and under the present Code the obligation to direct the accused to enter on defence after recording a finding that it is not a case where there is no evidence at all against the accused remains. Under the old Code even when the accused had stated that he wants to adduce defence evidence, the court is obliged to direct the accused again to enter on his defence. The legislature, in its wisdom appears to have felt that it is unnecessary to ascertain from the accused whether he has any defence evidence to be adduced before the point (i.e., whether there is no evidence adduced by the prosecution) is considered. The legislature appears to have further felt that after a decision in favour of the prosecution is taken on that issue, it is sufficient to call upon the accused to enter on his defence and adduce defence evidence. The legislature appears to have felt that it is not necessary to specifically ask a question to the accused whether he wants to adduce evidence as insisted under Section 289(1) of the old Code. This to our mind is the only change brought about by the rephrasing endeavour undertaken by the legislature.
17. It will not be inapposite in this context to refer to the nature and quality of consideration of the materials available by a Sessions Court at that stage - prior to issue of a direction to the accused to enter on his defence. It is unnecessary to advert to the precedents on the point in detail, We need only refer to the following decisions:
1. Pati Ram v. State of U.P. : 1970 (3) SCC 703
2. State of Kerala v. Mundan 1981 KIT 624
It is unambiguously clear that the quality of the evidence is not to be assessed at that stage. Acceptability, reliability, reasonableness, etc., are not relevant at that stage. What is to be considered is not whether there is acceptable evidence; but whether there is no evidence at all. In such a case where there is no evidence at all the accused should not be obliged to continue to face the trial both under the old Code and under the present Code.
18. Sans the obligation of the court under Section 289(1) of the old Code to ask the accused whether he wants to adduce any defence evidence, there is thus no change in the procedure prescribed though the statutory provisions are rephrased and rearranged for the purpose of elegance and precision. The following requirements appear to be non-negotiable. They constitute the soul of the statutory provisions and the core of the substantive law reflected in the procedural stipulations, both under the old Code and the new Code,
(1) Where there is no evidence at all proceedings should not continue against the accused.
(2) If the proceedings are not terminated thus, the accused must thereafter be given opportunity to adduce defence evidence with assistance of the court if necessary to summon, witnesses.
19. Coming back to the facts of the case, we reiterate that admittedly this is not a case where there is no evidence whatsoever against the accused as to justify termination of proceedings under Section 232 Cr.P.C, This is not a case admittedly where the accused was not given an opportunity to adduce defence evidence. He did adduce defence evidence also on being asked by the court whether he wants to adduce evidence. He has no grievance that any witness whom he wanted to examine has not been examined or opportunity has been denied to him to examine any such witness.
20. At the same time, we note that this is a case where the Sessions Court has omitted to record specifically in the order sheet or any where that mis is not a case in which it can be held that there is no evidence against the accused, A direction to the accused to enter on his defence is also not specifically recorded in the order sheet or anywhere, though the order sheet shows that the matter was posted for defence evidence.
21. The question is whether such non-compliance has vitiated the proceedings obliging the superior court to set aside the final judgment and direct the Sessions Court to continue the proceedings from that, stage. The learned Counsel for the accused contends that stipulated procedure in accordance with law has been violated and the said infraction must necessarily persuade this Court to hold that the further proceedings are vitiated. Consequently a direction deserves to be issued setting aside the proceedings that continued after such vice, The matter may be sent back to the court below to continue proceedings from mat stage., contends the learned Counsel vehemently.
22. The learned Director General of Prosecutions, on the contrary contends that in the absence of proof of prejudice, the innocuous non-compliance with the procedure literally is of no consequence. The alleged inadequacy, if any, is only curable under Section 465 of the Code. In the absence of prejudice the final order need not and cannot be disturbed for that reason, contends the learned D.G.R
23. There is a dispute raised as to whether the procedural stipulation in Sections 232 - 234 are mandatory or directory. All stipulations of the statutes must be held to be mandatory in the sense that the legislature has mandated the authorities to follow such procedure. Such procedure has got to be followed and should not be violated. There can be no doubt on that aspect. The authorities including courts are bound to follow the procedure prescribed by the legislature seriously, earnestly and with commitment. There cannot be two opinions oh that proposition at all.
24. We find similar contentions of inadequacy in the record and the proceedings by the Sessions Court in many cases and we therefore feel it apposite that it must be reiterated beyond doubt that Sessions Courts have to follow the prescribed procedures and make record of-having followed such procedure, In the order sheets maintained from the stage of Section 232 Cr.P.C. a Sessions Court must show the following steps clearly to satisfy the procedure prescribed:
(a) That the prosecution evidence was closed under Section 231 Cr.P.C. and hearing was held under Section 232 Cr.P.C.
(b) That the mind of the court was applied under Section 232 Cr.P.C. and a decision was taken on the question whether it is a case where there is no evidence at ail against the accused. If there is no evidence at all, a detailed and considered order of acquittal must be passed. If not, the fact that the case is not one in which there is no evidence at all must be recorded. In that event, no detailed order need be written.
(c) If the court, decides to proceed further, the accused must be called upon to enter on his defence and adduce evidence with the assistance of the court wherever necessary under Section 233 Cr.P.C to procure the presence of the witnesses,
(d) Whether the accused has adduced evidence or not must be recorded. If the accused has not adduced evidence, it must be recorded that the accused and/or his counsel stated that they want-to adduce-no defence avid by way of abundant caution the statement, of the accused can be recorded and his signature obtained as done under Section 289(1) of the old Code.
(e) Only thereafter the court should proceed to consider the question of acquittal/conviction under Section 234 Cr.P.C.
25. We make it clear that every Sessions Court, is bound to ensure that the above requirements are scrupulously followed and record to that effect is made in the order sheet maintained by them.
26. We now come to the most crucial question as to whether infraction of the above procedure must entail invalidation of the proceedings. That, in turn, has a bearing on the question as to whether the provisions are mandatory or directory. We repeat that all the procedural stipulations of the Code must be taken as mandatory in the sense that there is a mandate by the legislature to the authorities to follow them. The statutory stipulations must be followed and to that effect there is a mandate in the statutory provision.
27. But the question whether a stipulation in the Statute is mandatory or directory comes into consideration for a different and specific purpose - that is to decide whether infraction of the provisions would ipso facto vitiate the proceedings. On this aspect alone a distinction is to be drawn as to whether a statutory provision is mandatory or directory. A provision is held to be mandatory in the strict sense if the failure/omission to follow/respect that stipulation ipso facto leads to invalidation of the proceedings. The Supreme Court had occasion in the following cases to consider the question as to whether a stipulation is mandatory or only directory in the strict sense of the term:
(1) In re, Presidential Election 1974 AIR 1974 SC 1682;
(2) State of Kerala v. Alasserry Mohammed : AIR 1978 SC 933: and
(3) Dalchand v. Maniaipal Corporation Bhopal : AIR 1983 SC 303,
We need only extract the crucial observations which appear in para-13 of In re, Presidential Election (supra):
In determining the question whether a provision is mandatory or directory, the subject matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the courts to get at the real intention of the legislature by carefully attending to the whole scope of the provision to be construed. 'The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker express in the law itself, taken as a whole-' (See. Brett v. Brett. (1826) 3 Addams 210 at P.216).
28. The Code generally stipulates the procedure to be followed in all cases. Myriad may be the facts and events which present themselves in different cases. Ordinarily, therefore the procedural stipulations cannot be held to be mandatory. We have considered the provisions of Sections 232 - 234 Cr.P.C. carefully and we are convinced that the purpose of the stipulation is to ensure prompt compliance with requirements which we have already identified in para-18 above, An accused should not be compelled to endure the trauma of unnecessary continuation of proceedings in a Sessions Case, if there is no evidence at all against him. If there is evidence against him and the matter is to proceed further, the accused must be given an opportunity to adduce evidence in support of his defence. If these two requirements are substantially satisfied, we are unable to agree that there is any need to consider the stipulations of Sections 232 and 233 Cr.P.C. mandatory as to result in invalidation of the proceedings. In that view of the matter and in that sense it has to be held that the procedural stipulation in Sections 232 and 233 are not mandatory and infraction of the said stipulations does not ipso facto vitiate trial
29. Even if a provision is held to be directory, the same is expected to be complied with- If non-compliance of any stipulation which is only directory results in failure/miscarriage of justice, undoubtedly, the accused is entitled to take advantage of the same. -Every innocuous and irrelevant breach which has not resulted in prejudice cannot deliver to the accused any undeserved advantage Sections 232 and 233 Cr.P.C. can only be held to be directory and benefit or advantage can be conceded to the accused of any defect in procedure only if the same has resulted in failure/miscarriage of justice.
30. It will be apposite to straightaway to note that the Code of Criminal Procedure uses the expression 'called upon to enter on his defence' not only in Section 233 Cr.P.C. but elsewhere also. We extract below Section 243(1) and 247 Cr.P.C. where the said expression is used:
243, Evidence for defence,- (I) The accused shall then he called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement-the Magistrate shall file it with the record,
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247. Evidence far defence.- The accused shall then be called upon to enter upon his defence and produce his evidence; and the provisions of Section 243 shall apply to the case.
(emphasis supplied)
31. Considering the text and context of these provisions the expression 'called upon to enter on his defence' can only be held to mean that the accused must be given an opportunity to adduce his evidence after the prosecution evidence is closed. The expression 'called upon to enter on his defence' does not carry any magical significance and the mandate of the legislature is only that the accused must be given an opportunity to adduce his evidence. This procedural stipulation only gives expression to the well entrenched principle of law that no person must be condemned unheard. He must be given an opportunity to know the evidence against him as also an opportunity thereafter to rebut the evidence against him. The expression 'called upon to enter on his defence' in Section 233 Cr.P.C. can therefore only mean that the accused must be given an opportunity to adduce the evidence. No particular formality is intended to be performed under Section 233 Cr.P.C-Posting the case for defence evidence, a statement by the accused or his counsel that there is no defence evidence or the fact of adducing defence evidence are., according to us, sufficient to conclude that the accused was called upon to enter on his defence. It will only be proper in this context to note that the legislature in the new Code has chosen to dispense with the formal requirement of the court asking the accused whether he means to adduce any evidence which was obligatory under the old Code under Section 289(1). There are in a case where after the stage of Section 232 the case is posted for defence evidence, that would be sufficient to conclude, in the absence of clinching circumstances, that the court has proceeded to the stage of defence evidence taking the view that it is not a case to be closed at the stage of Section 232 Cr.P.C. The accused cannot in such ah event be heard to complain that the proceedings are vitiated and final judgment deserves to be set aside for that reason alone.
32. We shall now attempt to have a look at the precedents having a bearing on the question. The first decision that we intend to refer to is the one rendered by the Supreme Court in Pati Ram v. State of U.P. : 1970 (3) SCC 703, That was a case under the old Code, In that case, the accused was asked at the close of Section 342 Cr.P.C. examination whether he had any defence evidence, But later at the stage of Section 289(4), he was not formally called upon to enter on his defence. A contention was raised that this amounts to vitiation of proceedings. In para-10; the Supreme Court considered the question and answered the same thus:
10. It was next urged that Section 289, Cr.P.C had been contravened and, therefore, the conviction of the appellant cannot be sustained. This contention is based on the assumption that only after coming to the conclusion that an accused is guilty, the trial judge can call upon him to enter into his defence. This is clearly a misreading of the section. What that section requires is that, if the trial judge comes to the conclusion that there is evidence to show that the accused had committed the offence, then the accused should be called upon to enter upon his defence. The value to be attached to that evidence is not to be considered at that stage. In this connection it was also urged that the question whether the accused had defence evidence or not should not have been put to him in his examination under Section 342, Cr.P.C. but it should have been put to him separately. What has been done is, as is usually done in all such cases. After putting the questions that are required to be put under Section 342, Cr.P.C, the accused was asked whether he had any defence evidence. We do not think that that procedure in any way conflicts with Section 289, Cr.P.C. At the first instance, the appellant had stated that he had defence evidence to adduce, but when he was called upon to adduce that evidence, his counsel stated that he had no defence witness to be examined but nut in an application requesting the Court to summon a document to show that in the consolidation proceedings between him and the deceased he had filed a Razinama, The learned Trial Judge thought that the document in question was unnecessary as he was accepting the plea of the appellant that in the consolidation proceedings, the parties had entered into a compromise. Under that circumstance it was not necessary for the Court to summon the document in question.
33. The above observations show that what must be insisted is not any formality of calling upon the accused to enter on his defence; but giving him a real and reasonable opportunity to adduce defence evidence.
34. The first decision on the question of non-compliance with the provisions of Section 289/232 Cr.P.C. is traced in Premgir v. Emperor : AIR 1918 Allahabad 298, The Division Bench of the Allahabad High Court considered the question and made the following observations:
The learned vakil for the appellant has asked us to set aside the conviction, because he contends that the provisions of Section 289 Criminal P-C, have not been complied with. He urges that under Clause 4 of that section the Court should have called upon the accused to enter on his defence and this was not done in the present case. In the first place., we may observe that there is nothing to show that the Court did not call upon the accused to enter on his defence. On being asked he had told the learned Judge that he would not call any witness. He was being defended by a pleader and there is no affidavit before us or anything else to show that the Court had not called upon the accused or his pleader to enter on his defence. In the next place, if there was any omission it would in our opinion, be covered by the provisions of Section 537 Criminal P-C, as it is manifest that the accused was not in any way prejudiced by it.
35. A Division Bench of the Madras High Court later in Thoppa v. Emperor AIR 1936 Mad 82 followed the decision of the Allahabad High Court, and made the following observations:
There is no substance in the contention that the trial is vitiated by non-compliance with Clause 4, Section 289, Criminal P.C., which provides that the Court shall call on the accused to enter on his defence if after the prosecutor sums up the case it considers that there is evidence that he committed the offence and, as pointed out in Bechu Lal v. Injured Lady 28 Cr. L.J. 297, what that clause means is that if the accused calls no witnesses, he or his pleader is to make his final address to the Court, Even otherwise the omission to call upon the accused to enter on his defence is a mere irregularity covered by Section 537, Criminal P.C., Vide, Premgir v. Emperor 16 All LJ 41.
36. A. Division Bench of the Bombay High Court in Hanif Banomiya v. State of Maharashtra 1981 Cri LJ. 1622 had occasion to consider this question specifically as to whether the omission/failure to record that the case deserves to be proceeded to the stage of Section 233 Cr. PC. and that the accused was directed to enter upon defence vitiates the proceedings. The Division Bench answered the question holding that only when prejudice is proved the proceedings can be held to be vitiated. The Division Bench observed thus in para-31:
31. The question, however, is whether the absence of any order or absence of any indication in the order sheet or anywhere in the proceedings that the accused is called upon to enter on his defence would vitiate the trial and the subsequent conviction. The question, in our view, would have to be decided with reference to provision of Section 465 of the Criminal PC. That Section, it is well settled has not the effect of curing material irregularities and absolute illegalities. But the mere fact that a certain provision in the Code is couched in imperative language does not in itself indicate that a breach of the provision would vitiate the whole proceedings. The test to be applied in considering whether a particular infringement of the provision of the Code does or does not fell within the purview of Section 465 would be whether the error goes to the root of the trial or whether the Court has broken vital rule of procedure, The mere fact that an imperative statutory rule of procedure has been broken is not enough to vitiate the trial or proceeding. The court has to consider the gravity of the irregularity and omission and whether it caused or would have the effect of causing injustice to the accused. A distinction has to be made between a positive enactment in the Code that a certain trial shall not take place without certain pre-requisites and a positive enactment that in the course of such a trial, the prescribed procedure should be followed. Though both are imperative provisions, in the former case an infringement of the negative injunction amounts to an assumption of the jurisdiction and vitiates the trial from the very beginning. In the later case, an infringement merely amounts to error, omission or irregularity in the Procedure adopted in the course of the trial.
37. Another Division Bench of the Bombay High Court in Sangappa Niganpa Malahadi v. State of Maharashtra ILR 1987 Bom 962 also took the view that such innocuous non-compliance does not vitiate the proceedings unless prejudice is proved. In page 981 the Division Bench has made the following observations:
In view of the new provisions of Section 232 introduce in the Code of Criminal Procedure, 1973, it is better that the trial Judges hear the prosecution and the defence and record that it was not a case of no evidence and thereafter call upon the accused to enter into his defence. However, the irregularity, if any, in not recording that it was not a case of no evidence and acquittal of the accused on that account, before calling upon the accused to enter on his defence, is not a material irregularity which would vitiate the trial. It can be cured under Section 465 Cr.P.C. Consequently, we find that the judgment and order passed by the learned trial Tudae are not. vitiated on account of non-compliance of the provisions of Section 232 Cr.P.C.
38. In Lal Behari Das v. State of Tripura 1999 Cri L J 847 a Division Bench of the Gauhati High Court taking note of the contra decisions of other courts preferred to follow the decision in Sangappa Nigappa Malabadi v. State of Maharashtra ILR 1987 Bom 962 and observed thus in para-16:
We are, however, inclined to agree with the different view taken by the Bombay High Court in Sangappa Nigappa Malabadi v. State of Maharashtra ILR 1987 Bom 962 that an irregularity in not recording a finding under Section 232 Cr.P.C. that it is not a case of no evidence would not vitiate the trial but is curable under Section 465 Cr.P.C.
39. The same view was taken by a Single Bench of the Karnataka High Court in Majidkhan v. State of Karnataka : 1993 Cri-LJ-907, The following observations were made:
Section 232/233, Cr.P.C. lay down the procedure to be followed by the Sessions Court in the process of trial of an accused person. It is one thing to say that the said procedure should be complied with. However, it is quite another thing to say that failure on the part of the Sessions Court to comply with the said procedure would ipso facto vitiate the conviction. The failure on the part of the Judge to call -upon the accused person to enter on his defence in terms of Section 233, Cr.P.C. would not in all cases vitiate the conviction., if there are materials to indicate that no prejudice whatsoever has been caused to the accused. In other words, if on the facts of a particular case, no prejudice can be said to have been caused on account of the failure to comply with the procedure as laid down under Section 233, Cr.P-C. conviction cannot be said to be vitiated.
40. A Division Bench of the Kerala High Court after considering ail the relevant precedents on the point in Ramachandran k State of Kerala 2005(3) KLT 89 at page 75) accepted the same view and observed in. para-3 as follows:
Totality of the decisions would show that Section 233 is mandatory and it is not an empty formality. At the same time, if it is proved that there is substantial compliance, the matter has to be looked in a different angle. If after completing 313 statement case was adjourned for defence evidence at the request of the accused and on the submission of their advocate in the presence of the accused that there is no evidence for the accused, the case can be posted for arguments as there is no failure of justice. In such case, there is no necessity for remanding the matter or setting aside the judgment for not strictly complying with the provisions of Section 233, We hold that even though Sections 232 & 233 are mandatory, if there is substantial compliance and no prejudice is caused, interference is not needed in the absence of failure of justice.
41. The position emerging from the above decisions clearly is that the provisions of Sections 232 and 233 are mandatory in the sense that courts have to follow the same strictly. But they are not mandatory and are only directory in the sense i.e., when tested on the touch stone as to whether infraction would necessarily vitiate and invalidate the proceedings. The proceedings can be said to be vitiated and the same deserves to be invalidated by a superior court only if such inadequacy/error in the procedure has resulted in prejudice to the accused and consequent failure of justice. The infraction/omission does not ipso facto vitiate the proceedings.
42. Prior to the decision in Ramachandran (supra). Division Benches of this Court appear to have taken a different view. At least certain observations in those decisions convey the impression that a contra view has been taken by the Division Benches of this Court. We shall now proceed to consider those decisions:
43. The first of such decisions and perhaps the one that is referred to in most of the subsequent decisions is rendered by the Division Bench in Radhanandan v. State of Kerala 1990 (1) KLT 516, The Division Bench made the following observations in para-2:
2. Every accused is entitled to a fair trial, which includes opportunity for adducing his own evidence also. That is his right if he is not acquitted under S,232 on the ground that the judge considers that there is no evidence that he committed the offence. In such a situation, it is mandatory that he should be called upon to enter on his defence and permitted to adduce oral and documentary evidence of his choice. On his application the court has the duty to issue process and secure witnesses, documents or things. The choice in this respect is solely on him. Calling the accused to enter on his defence is not an empty formality. Its omission will be fatal to the prosecution and the conviction will be bad. The application of the accused for issue of process for compelling the attendance of any witness or the production of any document or thing cannot be rejected by the court as unnecessary. The discretion of the court to reject such an application under Section 233 is only on the ground that it is made for the purpose of vexation or delay or for defeating the ends of justice. Subject to those restrictions, the accused is having the unfettered right to have any witness, document or thing summoned. Entering on defence and adducing evidence marks a special stage in and is an essential part of a criminal trial. If that chance is denied, it cannot be said to be fair trial The restrictions on the grounds of vexation, delay or defeating the ends of justice are not available in this case.
These observations is the plank on which most of the subsequent decisions of this Court are built. It will be proper to consider the circumstances under which those observations were made by the Division Bench in Radhanandan (supra), The Division Bench was not called upon to decide whether innocuous non-compliance of Sections 232 and 233 would vitiate the proceedings, That was a case where a witness who was sought to be examined as a defence witness was not permitted to be examined. The observations in para-2 extracted above have to be considered in the backdrop of the precise question that came up for consideration. To us, the above observations in para-2 do not appear to lay down a proposition that any and every infraction of the procedure under Sections 232 and 233 even if they be innocuous must necessarily vitiate the proceedings and must lead to invalidation of the proceedings thereafter. The court was only emphasising the importance of giving an opportunity for the defence to adduce proper evidence and the need to help the accused to procure such evidence. The observations in para-2 properly understood does not at all support the view canvassed by then learned-counsel-for-the petitioner.
44. The next decision on the question though it does not specifically refer to Radhanandan (supra) is also rendered by a Division Bench in Sivamani v. State of Kerala 1992 (2) KLT 227. The observations therein appear to suggest that strict compliance of Sections 232 and 233 is essential and failure may lead to invalidation of proceedings. The Division Bench also appears to have felt that there is significant difference in the procedure under Section 289 of the old Code and Sections 232 and 233 of the present Code. We have already analysed the provisions of Sections 289 and 290 of the old Code and Sections 232 to 234 of the new Code and have taken the view that there is no significant difference in the core of the provisions and that Sections 232 and 233 are only a rephrasing elegantly of the earlier provisions in Sea 289, of course, giving up the obligation under Section 289(1) to question the accused whether he wants to adduce any defence evidence.
45. Moreover, to us, it appears that the Division Bench had come to the conclusion that the omission to hold a hearing under Section 232 and the failure to specifically call upon the accused to enteronkis defence has resulted in prejudice to the accused in the facts of that case. Following observations appearing in. para-9 clearly suggest that the Division Bench felt that an effective opportunity to adduce evidence was denied to the accused in the facts of that case:
In fact learned Counsel for the appellants submitted that if the case has to proceed farther to the stage after Section 232, appellants may have to consider whether defence evidence is necessary.
In the facts of that case it appears that the defective procedure had confused the accused. He was groping in the dark, it appears, as to whether arguments were being heard under Section 232 Cr-P.C- or Section 234 Cr.P.C and whether the stage had reached for him to adduce defence evidence or not In short, in the facts of that case the learned Judges did perceive substantial prejudice to the accused and consequent failure of justice resulting from such defective procedure.
46. In the decision in Bhadran v. State of Kerala 1993 (1) Kar LJ 971 a Division Bench of this Court made the following observations in para-5;
5. In the state of law, the accused must be informed of his rightly the trial judge and an effective and meaningful opportunity to adduce evidence in his defence must be extended to him when necessary by giving reasonable adjournments. While acting under Section 233, the court must tell the accused that he has a right to enter on his defence even if he is represented by counsel Then, the court must also tell him that he can adduce evidence in support of his defence, If he needs time for that, he is entitled to have such time. Section 233 embodies a deep rooted principle, recognised in trials, namely that no man shall be condemned, in his defence without hearing him.
The learned Judges appear to have felt that the earlier Division Benches had taken the view that the section is mandatory and that it must receive strict adherence-The question of law as to whether the stipulations of Section 233 are matters of substance or form was not considered by the court and we find the following specific observations in para-4;
We do not propose to go into the question whether the requirements of Section 233 are matters of substance or form, in view of earlier pronouncements of this Court.
We do note that no earlier pronouncement of this Court had laid down a proposition that the requirements of Section 233 are matters of substance. If the said decision is to be reckoned as laying down a proposition that the procedure under Section 232/233 is mandatory in the strict sense and every breach thereof even if innocuous must entail invalidation of proceedings, we respectfully disagree, We are unable to agree that there is any duty on the Sessions judge to educate the accused on his right to adduce evidence even when he is represented by a counsel He has to be called upon to enter on his defence under Section 233 Cr.P.C. This means he must be given an opportunity to adduce evidence on his side. The mere fact that the court did not apprise the accused of his right to adduce defence evidence under Section 233 but only granted him opportunity to adduce defence evidence., cannot be reckoned as infraction of the mandate of Section 233. We agree with the Division Bench that the court can do the same. But we disagree with the proposition that the omission to apprise the accused of such right, even when opportunity is given to adduce defence evidence, will lead to vitiation of proceedings,
47. A later Division Bench in Jomon v. State of Kerala 1998 (1) KLT 31 took the view that both the hearing under Section 232 and rendering of the decision, and adjourning of the case for defence evidence in terms of Section 233 cannot be done on the same day. The detailed, facts are not available- But we find the following observations in the Short Notes reported which suggest that the court was satisfied that sufficient opportunity to give evidence in defence was not given and was denied to the accused in that case;
In our view, he was not given sufficient, opportunity to give evidence indefence about which what was said in paragraph-6 of the judgment was totally unjustified.
That was evidently a case where the Division Bench felt that non-compliance' had resulted in prejudice. That decision does not lay down a proposition that Sections 232 and 233 are mandatory.
48. Three later Division Benches of this Court in State of Kerala v. Ahoohacker : 2006 (3) KLJ 165 (see para-21); Chandran v. State of Kerala : 2005 (4) KLT 962 (see para-11 to 13) and Suresh v. State of Kerala : 2006 (1) KLT 78 (see para-21) have taken the view that the provisions of Sections 232 and 233 are mandatory and their breach must lead to invalidation of proceedings. The infirmity goes to the root of the matter, it was held-A perusal of these decisions reveal that they had only followed the decisions in Radhanandan and Sivamani (supra) and had not independently considered the question in detail.
49. Having considered the question of law with the help of principles and precedents, we come to the conclusion that the correct position of law has to be stated as follows:
(i) Sections 232 and 233 of the Cr.P.C. are mandatory in the sense that all Sessions Courts are expected to comply with those provisions strictly and earnestly and the compliance, should be reflected in the proceedings.
(ii) However non-compliance of the said provisions does not ipso facto vitiate the proceedings,
(iii) If it is shown that the omission to comply with the provisions has resulted in serious and substantial prejudice against the accused and consequent failure of justice, such omission vitiates the proceedings from that stage and superior courts will be justified in setting aside the final order and directing the Sessions Court to continue trial from that stage afresh.
(iv) If there be substantial compliance and if there be no serious and substantial prejudice against the accused and no resultant failure of justice flowing from the inadequacy in compliance, such inadequacy/irregularity is curable under Section 465 Cr.P.C. and such inadequacy/non-compliance will not vitiate the proceedings or lead to invalidation of the subsequent proceedings.
We overrule all decisions- of this Court where a contra view is taken.
50. Coming back to the facts of the case, we have already held this to be a case where proceedings cannot be discontinued at the stage of Section 232 on the ground that there is no evidence at all against the accused.. We do further note that this is a case where the accused has been given an opportunity to adduce evidence and he has adduced all such evidence that he wanted to adduce. There is no grievance that he wanted to adduce any further evidence or has been disabled from adducing any evidence. In these circumstances, the mere omission to record that application of mind under Section 232 has taken place and that the accused was thereafter called upon to enter on his defence cannot vitiate the proceedings. That is only a curable inadequacy/irregularity under Section 465 Cr. P.C. we hold
51. This reference to the Full Bench is so answered and the case is sent back to the learned, single Judge for disposal of the revision petition in accordance with law.