Judgment:
1. The petitioner arrayed as accused No.2 in Special CCNo.208/2004, on the file of Court of Special Judge & 36th Addl. Sessions Judge at Bangalore, aggrieved by the dismissal of IA No.669/2011 is before this com'.
2. I have heard Sri V.Giri. learned senior counsel appearing for petitioner and Sri B.A.Acharya, learned Special Public Prosecutor appearing for the State.
3. The brief facts necessary for disposal of this petition are as follows:-
The trial court concluded the recording of statement under section 313(l)(b) Cr.P.C, of accused No.1 on 20.10.201 1, 21.10.201 1, 22,1 1.201 1. 23.1 1.2011 and it was posted to 08.12.2011 for the purpose of appointing an interpreter in order to translate the questions formulated under section 313(l)(b) Cr.P.C, against petitioner. The petitioner filed 1A No.669/2011 under section 313 Cr.P.C. seeking the reliefs of
(i) to direct the interpreter to translate each question framed in English into correct and proper Tamil and to record the same before putting it to petitioner:
(ii) to direct the interpreter to record The answers as given by the petitioner in Tamil before translating it into English for recording by this Hon'ble court and
(iii) to direct that the translated versions are to be kept as a part of the record.
4. The learned trial Judge rejected I.A.No.669/2011 in terms of the impugned order, however held that services of interpreter can be utilise to interpret Questions under section 313 Cr.P.C. to be put to petitioner from English language to Tamil language and answers to be given by petitioner in Tamil language into English language to the court at the time of recording statement of petitioner under section 313 Cr.P.C For the aforestated purpose, the trial court appointed one Sri Harish, Advocate as an interpreter, whose services as an interpreter had been availed when further evidence of some of witnesses, who were not aware of court language, was recorded.
5. Sri V.Giri. learned senior counsel appearing for petitioner has made following submissions:-I. Thai petitioner does not know the official language of trial court (Kannada/English). The learned Judge of trial does not know Tamil language. The evidence on record court consists of testimonies of 259 witnesses, documents numbering 2341. material objects numbering 1066. apart from 19 exhibits marked on behalf of defence. In the circumstances, the questions that would be framed under section 313 Cr.P.C. would be rather complex, may be a single question would be combination of several questions.
Therefore, it is necessary that interpreter appointed by the court has to record each question framed in English language in Tamil language, before putting the same to petitioner. The interpreter has to record answers to be given by petitioner in Tamil language before translating into English language for being recorded by the learned trial Judge and such translated version shall be kept as pail of record.
The learned senior counsel appearing for petitioner, relying on the orders made by the Supreme Court in Special Leave Petition Nos. 10324-10325/2010 would contend that such a practice was accepted by the Supreme Court in the earlier stages of the same proceedings.
11. The Special Leave Petition Nos. 10324-10325/2010 preferred by accused No. 1, the Supreme Court has held:-
"Fair trial is part of the fundamental rights guaranteed under Article 21 of the Constitution. To ensure fair trial, it is necessary that defects in the translation of the depositions be corrected and the witnesses which are going to be examined, their depositions should be correctly translated.
In The facts and circumstances of the case, we deem it appropriate to permit the presiding officer to engage the services of a person who is well versed both in Tamil and English languages who should be available to the presiding officer and to the parties as and when it becomes imperative. The State to bear the expenses of the expert.
Mr.Nageshwar Rao further submits that 250 witnesses have already been examined and if there is any defect in translation of the depositions of those witnesses, the presiding officer may pass necessary orders alter hearing learned counsel for the parties. The prayer is reasonable and we order accordingly."
III. The learned senior counsel appearing for petitioner, referring to the order made by the Supreme Court in SLP Nos.10324-10325/2010 dated 14.12,2010 and order made by this court in Criminal Petition No. 1526/201 ] dated 18.03.201 I, would submit that petitioner has been permitted to place on record the correct translated version of depositions of witnesses recorded in Tamil language into English language and translated versions would form part of record.
IV. The learned senior counsel appearing for petitioner would submit that examination, of petitioner under section 313 Cr.P.C, has vital bearing on criminal proceedings and if mistakes were to creep in the process Of translation, such mistakes cannot be verified in the absence of a contemporaneous translated version prepared by interpreter while translating the questions framed in English language to Tamil language and answers to be given by petitioner in Tamil language to English language.
V. The learned senior counsel appearing for petitioner would submit that preparation of contemporaneous record suggested by petitioner in IA No.669/201 1 would meet the requirements of a fair trial, which is a fundamental right guaranteed under article 21 of the Constitution.
6. The learned Special Public Prosecutor appearing for the State has made following submissions:-I. The preparation of translated version of questions framed in English language to Tamil language and translated version of answers to be given by petitioner in Tamil language to English language is not contemplated by law.
II. The language of court shall be in terms of section 272 Cr.P.C. In the State of Karnataka, languages of the court notified by the Government are Kannada and English.
III. The learned Special Public Prosecutor, referring to the provisions of section 279 Cr.P.C. would submit that whenever any evidence is given in a language not understood by accused, and he is present in Court in person, it shall be interpreted to him in open Court
a language understood by him.
IV. The learned Special Public Prosecutor referring to the provisions of section 282 Cr.P.C. would submit that when the services of an interpreter are required by any Criminal Court for the interpretation of any evidence or statement, he shall be bound to state the true interpretation of such evidence or statement.
V. The learned Special Public Prosecutor would submit that petitioner raised serious objections regarding translated versions of depositions of witnesses from Tamil language to English language. The learned Special Public Prosecutor would submit that the Supreme Court in SLP Nos. 10324 10325/2010 dated 14.12.2010 has held:-
"In the facts and circumstances of this case, we deem it appropriate to permit the
Presiding Officer to engage the services of a person who is well versed both in Tamil and English languages who should be available to the Presiding Officer and to the parties as and when it becomes imperative. The State to bear the expenses of the expert.
Mr.Nageshwar Rao furl her submits that 250 witnesses have already been examined and if There is any defect in translation of the depositions of those witnesses, the Presiding Officer may pass necessary orders after hearing learned counsel for the parties. The prayer is reasonable and we order accordingly."
VI. The learned Special Public Prosecutor would submit that services of one Sri Harish, Advocate as an interpreter were availed when further evidence of certain witnesses. who deposed in Tamil language was recorded.
VII. The learned Special Public Prosecutor would submit that interpreter appointed by the court is bound to discharge his duties in terms of section 282 Cr.P.C., and who on oath undertakes the responsibility of interpretation has to be (rusted. The apprehension of petitioner that interpreter would not be in a position to accurately translate complex questions framed in English language to Tamil language and answers to be given by petitioner in Tamil language to English language is unfounded and such apprehensions are surmises and conjectures of the petitioner.
7. In view of the submissions made by learned senior counsel for parties and the contentions raised by parties, the following point would arise for determination:-
'Whether the learned trial Judge was justified in rejecting the application of petitioner for a direction to interpreter lo prepare a contemporaneous record of translation while translating each question framed in English language to Tamil language before translated version in Tamil language is put to petitioner as also to prepare a contemporaneous record of translation of each answer given by petitioner in Tamil language to English language before it is recorded by the learned trial Judge and the request of petitioner that such contemporaneous record shall be part of court record?"
It is the case of petitioner that she does not know English language, in which language questions are formulated under section 313 Cr KC. It is obvious that these questions formulated under section 313 Cr.P.C. will have to be put to petitioner in Tamil language.
8. At this juncture, it is necessary to refer to the provisions of section 279 Cr.P.C. which provides for interpretation of evidence to accused or his pleader whenever any evidence is given in a language not understood by the accused, and he is present in Court in person, it shall be interpreted to him in open Court in a language understood by him.
9. Section 282 Cr.P.C, provides when the services of an interpreter are required by any Criminal Court tor the interpretation of any evidence or statement, he shall be bound to state the true interpretation of such evidence or statement.
10. On careful consideration of the provisions of section 279 and 282 Cr P.C, I find that law does not require simultaneous preparation of translated version by the interpreter. Under section 3"I3(l)(b) Cr.P.C. the court shall, after the witnesses for the prosecution have been examined and before accused is called on for his defence, question him generally on the case. Under section 313 Cr.P.C, attention of accused shall be drawn to incriminating material appearing against him so as to enable him to explain it.
11. On a combined reading of section 282 Cr.P.C. and section 313 Cr.P.C. it is seen that these provisions do not provide tor preparation of contemporaneous record of translation by the interpreter as prayed for by petitioner in l.A. No.669/2011.
12. In a decision reported in 1987 Crl.L.J. 180 (in the case of Dasan and others Vs. State of Kerala), a Division Bench of Kerala High Court has held:-
"16. There is no case that questions put were not proper or simple or that all the evidence or circumstances were not put to them. The objection is that the questions were recorded by typewritten English and there is nothing to show that the questions were translated into Malayalam, which language alone the accused could understand, explained to The accused and answered by them after understanding the questions. So also it was argued that the MalayaJam translation of the questions are not recorded enabling this Court to ascertain what questions were exactly asked and the Sessions Judge has not certified under his signature that the questions were translated into Malayalam, explained by him and he personally recorded the questions and answers ll has to be noted that no such contention was taken in the appeal memorandum. Mr.A.R.Sreenivasan, who appeared before us was the counsel who appeared before t he-Sessions Judge also. Me admits that the questions were asked in MalayaJam. The questions recorded in English and the answers recorded in Malayalam show that the questions were properly understood and answers were given. If so it is clear that this is intended only as a technical contention without any prejudice having been caused.
17. This contention seems to have been raised on the basis of the Short Note decision, case No. 88 of page 34. 1978 Ker LT :(1979 Cri.L.J. NOC 16). That decision deprecated the practice of recording 313 questions in English and answers in Malayalam where the accused do not know English. So also it was laid down therein that when Malayalam translations of the English questions are asked these Malayalam translations of the questions also must be recorded in order to ascertain what exactly were the questions that were asked. We have considered that decision in detail and we are of opinion that it has not laid down the con eel law on the point. Under Section 272 of the Code English is also the language-of the court. Charge is being prepared in English and proceedings of Court including judgments or orders are also written in that language. The cede contains provisions for interpretation in the language understood by the accused whenever evidence is given in a language not understood by him. Preparing 313 questions in English cannot be said to violate any of the provisions of the Code. Whenever the accused is unable to understand English the questions could be translated into the language which he understands and the answers recorded. There is no irregularity or illegality in translating English questions into Malayalam and recording the answers in Malayalam. it is true that it is always safe for the Magistrate or the judge to certify under his writing and signature that the English questions were correctly translated and explained to the if accused, that he understood and answered in Malayalam and the answers were correctly recorded. In fact Section 281(5) of the Cr. P.C. so provides also. That may add assurance to what takes place in 313 questioning. This could be had in addition to or independent of compliance of Rule 57 of the Criminal Rules of Practice. But to insist that Malayalam translation of the English questions also should be recorded appears to be an unnecessary formality involving waste of judicial time and energy. Questions are being translated and asked by responsible judicial officers who could very well be believed when they certify that the English questions were correctly translated and asked by them. When the English questions are there how can there be any difficulty in understanding the Malayalam versions of the questions asked. Section 281 [3] of the Cr.P.C. permits recording of the examination of the accused in the language of the court. Even though Section 313 does not deal with examination of witnesses but the accused there seems to be no reason to have a discrimination in the matter of language so far as Section 313 alone is concerned, Section 313 does not require recording of the questions in the language spoken by the accused. There is nothing strange in preparing the questions in English, translating and asking them in Malayalam and recording the answers in Malayalam. What is required to be safeguarded in the interest of justice is that the accused should understand the questions and he should not be prejudiced. In that respect faith in the honesty and integrity of the judicial officers is the solution."
13. The learned senior counsel appearing for petitioner, referring to the above decision would submit that in the aforesfated case, services of interpreter were not availed when accused was questioned under section 313 Cr.P.C.
In the foretasted case, the learned trial Judge knew English and Malayalam languages, however accused did not know English, language. The learned senior counsel appearing for petitioner would submit that in the case on hand, services of interpreter are availed for recording the statement of petitioner under section 313 Cr.P.C. Therefore, what has been held in the aforestated decision is not applicable to the facts of instant case.
As already stated, an interpreter to be appointed by this court has to discharge his duties in terms of section 282 Cr.P.C. Further, interpreter appointed by the trial court is bound to take oath and solemnly affirm under section 4 of the Oaths Act. J 969. which provides for oaths or affirmations to be made by witnesses, interpreters and jurors.
Section 4 reads as follows: -
"4. Oaths or affirmations to be made by witnesses, interpreters and jurors - (1) Oaths or affirmations shall be made by the following ocrsons. namely;-
(a) all witnesses, that is to say. all persons who may lawfully be examined or give, or be required to give, evidence by or before any court or person having by law or consent of parties authority to examine such persons or to receive evidence:
(b) Interpreters of questions put to, and evidence given by. witnesses: and
(c) Jurors/
Provided that where the witness is a child under twelve years of age. and the court or person having authority to examine such witness is of opinion that, though +he witness understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the foregoing provisions: but in any such case the absence of an oath or affirmation shall not tender inadmissible any evidence given by such Witness nor affect the obligation of the witness lo state the truth.
(2) Nothing in this section shall render it lawful to administer, in a criminal proceeding an oath or affirmation to the accused person, unless he is examined as a witness for the defence, or necessary to administer to the official interpreter of any court, after he has entered on the execution of the duties of his office, an oath or affirmation that he with faith fully discharge those duties." Similarly, section b of the Oaths Act. 1969 enables a witness, interpreter or juror to make an affirmation, instead of making an Oath.
14. The examination of accused under section 313 Cr.P.C would be in the presence of learned counsel appearing for accused, who know English and Tamil languages. Therefore, even if any errors were to occur in the process of translation by the interpreter and if they are likely to cause prejudice to petitioner, the learned counsel for accused may assist the court. Therefore, the submission of learned senior counsel appearing for petitioner cannot be accepted.
15. The Supreme Court in SLP Nos. 10324-10325/2010 dated 14.12.2010 Tiled by accused No. 1 has held:-
"Fair trial is part of the fundamental rights guaranteed under Article 21 ol the Constitution.
To ensure fair trial, it is necessary that defects in the translation of the depositions be corrected and the witnesses which are going to be examined, their depositions should be correctly translated.
In the facts and circumstances of this case, we deem it appropriate to permit the Presiding Officer to engage the services of a person who is well versed both in Tamil and English languages who should be available to (he Presiding Officer and to the parties as and when it becomes imperative. The State to bear the expenses of the expert."
16. In a decision reported in 1991 CrLL.J. 2632 (in the case of State Vs. Dashrath), a Division Bench of this court has held:-
"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 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... 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.... 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 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 m 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 under section 313 of the Code is neither a lest of his intelligence nor his memory... The questions must therefore be couched in simple language which can be understood even by an illiterate person and must relate lo a single circumstance as far as possible.
7 The duty is to put specific circumstances of incriminating nature noon 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 learned trial Judge is quite conscious of complexity of the situation, wherein the petitioner does not know English language and the learned trial Judge does not know Tamil language. In the circumstances, it can safely be presumed that the learned trial Judge would avoid putting complex questions to petitioner, more particularly, when such questions will have to be translated from English language to Tamil language by the Interpreter appointed by the trial court.
. The learned senior counsel appearing for petitioner, reiving on the judgment of this court, reported in 2005 Crl.L.J.2687 (in the case of Dikurarsab Alisab Jakati Vs. State of Karnataka by its State Public Prosecutors) would submit that the court while recording the evidence of a dumb witness must record both signs as well as the interpretations of the interpreter and then only it becomes admissible under the Indian Evidence Act.
18. In my considered opinion, such a situation arises while recording evidence of dumb witnesses in the manner provided under section 119 of The Evidence Act.
In the case on hand, we are dealing with a situation where accused is no! in a position to understand the questions under section 313 Cr.P.C, which are framed in English language and a situation where the learned trial Judge is not able to understand the answers given by petitioner in Tamil language. In order to ensure that petitioner understands the questions put by court under section 313 Cr.P.C, and also ensure that court understands the answers given by petitioner in Tamil language, the trial court has appointed an interpreter, who knows both the languages and capable of translating questions from English language to Tamil language and answers to be given by petitioner in Tamil language to English language. Therefore what has been held in the aforestated decision is not applicable to this case.
19. The learned senior counsel appearing tor petitioner, relying on a judgment of Calcutta High Court in C.R.A.No.272/2009 (in the case of Mongol Ram Singh and another Vs. Stale of West Bengal) would submit that petitioner is examined under section 313 Cr.P.C. in the language not known to petitioner with the aid of interpreter the translated version of questions framed in English language and translated to Tamil language as also translated that shall form part of record, version of answer?:, given by petitioner in Tamil language to English language shall be recorded by the interpreter and.
20. On careful consideration of the aforestated judgment, I find that the learned trial Judge while recording statement of accused under section 313 Cr.P.C, had not even ensured that accused knows Bengali language in which language questions were framed. Question No.3 framed in the aforestated case was the combination of entire evidence adduced by prosecution.
21. In the circumstances, the Calcutta High Court has held that accused No.2 did not sufficiently know Bengali to understand the complicated lengthy question put to him, moreover the translated version in Hindi language put to him ought to have been recorded In the absence of any answer whether appellant No,2 really knew Bengali at all, it was useless to certify that the appellant approved the translated version in Mindi to be correct translation from Bengali.
22. In my considered opinion, the foretasted judgment has not laid down any law regarding preparation of contemporaneous record of translation by the interpreter appointed For examination of accused under section 313 Cr.P.C.
23. In a decision reported in AIR 1967 SC 986 (in the case of Shivanarayan Kabra Vs. The State of Madras), the Supreme Court dealing with the provisions of section 361(1) of Criminal Procedure Code. 1898. which is analogous to section 279 of Criminal Procedure Code, 1973 has held:-
"10. We pass on to consider the next contention of The appellant that there was a breach of s. 361. Criminal Procedure Code which states:
"361.(1) Whenever and evidence is given in a language not understood by the accused, and he is present in person; it shall be interpreted to him in open Court in a language understood by him.
i) If he appears by pleader and the evidence is given in a language other than the language of the Court, and not understood by the pleader, it shall be interpreted to such pleader in that language.
It was said that the evidence of the prosecution witnesses was given either in Tamil or in the English language and the appellant did not know either of the languages and so he was not able to take part in the trial. Mr. Naunit Lal contended that there was a breach of the requirement of S.361 (1), Criminal Procedure Code and the trial was vitiated. We do not think there is any substance in this argument. Even if it is assumed that the appellant did not know English or Tamil the violation of S.361(l), Criminal Procedure Code was merely an irregularity and it is not shown in this case that there is any prejudice caused to the appellant on this account, h is pointed out by the Sessions Judge that the appellant did not make any objection at the time the evidence was given and it appears that he was represented by two ennnenL advocates-Sri V. T. Rangaswami lyenger and Sri R. Krishnamoorthy Iyer-in the trial court who knew both these languages and who would not have allowed the interest of the appellant to be jeopardised even to the smallest extent. In our opinion, the irregularity has not resulted in any injustice and the provisions of S.537. Criminal Procedure Code are applicable to cine the defect."
In the case on hand, the court had already availed the services of an interpreter namely Sri ilarish. Advocate of the Bar for recording further evidence of some of the witnesses who had deposed in Tamil language.
24. InSLPNos. 10324-10325/2010 dated 14.12.2010. the Supreme Court has held:
Fair trial is part of the fundamental rights guaranteed under Article 21 of the Constitution. To ensure fair trial, it is necessary that defects in the translation of the depositions be corrected and the witnesses, which are going to be examined, their depositions should be correctly translated.
In the facts and circumstances of the case, we deem it appropriate to permit the Presiding Officer to engage the services of a person who is well versed both in Tamil and English languages who should be available to the Presiding Officer and to the parties as and when il becomes imperative. The State to bear the expenses of the expert.
The Supreme Court has permitted appointment of translator, who is well versed both in English language and Tamil language to avoid anomaly that may creep in the translation of depositions.
The learned trial Judge on over all consideration of the facts and circumstances of the case and also bearing in mind legal position has held that for the purpose of examination of petitioner under section 313 Cr.P.C, and make her to understand questions framed in English language as also to enable the court to understand the answers to be given by petitioner in Tamil language has deemed il fit to appoint Sri Harish, Advocate of the Bar as an interpreter.
The learned trial Judge has held that interpreter Sri Harish, is directed to continue his services as an interpreter.
The shall interpret the questions under section 313 Cr.P.C, to be put to petitioner/accused No.2 from English language to Tamil language and answers to be given by petitioner in Tamil language to English language lo the court at the time of recording the statement of petitioner under section 313 Cr.P.C. Therefore. I am of the considered opinion that the procedure adopted by the learned trial Judge for recording the statement of petitioner under section 313 Cr.P.C. in terms of the impugned order is in accordance with law. The contention of petitioner that interpreter has to prepare translation of each question framed in English language into Tamil language and to record the same before putting it to petitioner and in turn interpreter to record the answers given by petitioner in Tamil language before translating into English language for being recorded by the trial court cannot be accepted.
25. In view of the above discussion, I hold that the impugned order does not suffer from any legal or factual Infirmity, The impugned order does not call for interference.
26. In the result. I pass the Following:-
ORDER The petition is dismissed.