Uttarakhand High Court
Applicant / vs State Of Uttarakhand on 26 August, 2025
RESERVED ORDER
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
HON'BLE THE CHIEF JUSTICE SRI G. NARENDAR
AND
HON'BLE SRI JUSTICE ALOK MAHRA
Bail Application (IA No. 2 of 2024)
In
CRIMINAL APPEAL NO. 37 OF 2024
Diwan Singh Bhandari
... Applicant / Appellant
Versus
State of Uttarakhand
...Respondent
Counsel for the appellant. : Mr. Devesh Upreti, learned counsel.
Counsel for the State of : Mr. J.S. Virk, learned Deputy Advocate
Uttarakhand. General with Sri Rakesh Joshi, learned
Brief Holder for the State of Uttarakhand.
ORDER RESERVED : 19TH MARCH, 2025
ORDER DELIVERED : 26TH AUGUST, 2025
ORDER :
(per Hon’ble The Chief Justice Sri G. Narendar)
Heard the learned counsel for the appellant/
convict, and the learned Deputy Advocate General for the
State of Uttarakhand.
2. At the outset, we wish to express our shock with
the approach of the Trial Court. We are unable to
decipher, if it was a mere imprudent approach or innocent
mistake. Prima facie, we are constrained to observe so,
after examining the lengthy questioning of the accused
under Section 313 of the CrPC, wherein, in all, about 44
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questions have been framed and posed to the appellant/
convict. The questions include the questions relating to
the transfer of the Investigating Officer; appointing of the
Investigating Officer; accident suffered by the
Investigating Officer (all unrelated to the case); the
instructions given by the Dy.S.P. to be present at the
spot; the calls made by the Head of the Special Operations
Group to the SHO, Someshwar P.S., asking him to join
him in search operation pursuant to the information
received; the entries made by the police personnel in the
GD; and the forwarding of the sample to the FSL. From a
reading of Section 313 CrPC, the understanding one can
arrive at is that the Court is required to put questions
relating to the circumstances appearing in the evidence
recorded, against him – simply stated incriminating
material against him. Section 313 CrPC 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 the2
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.”
3. The answers elicited before the Court are not
mere one word answers, but a clear assertion that the
proceedings were drawn in the Police Station; that he was
not arrested at the alleged place, and in fact what is very
pertinent and of some importance, is his answer to
Question No. 43, where when asked, if he wants to give
evidence in his defence, he has stated ‘Yes’, to the
Question No. 43 which reads as under :
“Do you have to give evidence in your defence?”
4. In Question No. 44, when called upon to make a
statement, he has given a statement, which has been
recorded, but which unfortunately the Trial Court has
completely failed to appreciate, and in fact has made out a
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case in favour of the prosecution, which was not even the
case of the prosecution. The statement of the appellant/
convict, which is on record, reads as under :
“Answer to Question No. 44 :
I am a resident of Jhooni Village and live at
Haldwani along with family. And I run a fast food stall at
Kalawati Chowk, Nawabi Road, there. On 13.10.2020, I
came to Bageshwar from Village Jhooni. The distance of
Village Jhooni from Bageshwar is 70-80 km. During the
night, I stayed at my relative’s house. Next day, I came
to Station early in the morning to go to Haldwani. When
I was standing at the Station, a white coloured car
came, in which Basant and two other people were
sitting. Basant Kunwar and brother Ramesh Singh
Kunwar used to work at my Fast Food Stall. That is
why, Basant knew me. He asked me to accompany
them to Haldwani. On his asking, I sat in his car. Going
a little forward, some people got the car stopped and
said that they are SOG people and took the car to
Someshwar Police Station. At the place where the car
was stopped, they took our purse, phone. At Police
Station Someshwar, the police personnel sat free Basant
Kunwar and his two associates by taking money. They
were asking for money from me also. I was not having
the money demanded by them. Then, they lodged me in
an illegal manner. Nothing was recovered from me.”
5. The salient features of the above statement are,
one, he was picked up from a short distance from
Bageshwar and not from Someshwar (about 40 Kms), two,
he has named two known and one unknown person as
occupants of the car and he was merely a gratuitous
passenger in it at the invitation of the Brothers who were
his employees in his food stall and they three were let off
by the police in Someshwar PS after taking bribe. In
short, he points fingers at the Brothers as the real culprits
4
and that the investigation stood compromised on account
of Bribe received by the police. The statement not only
incriminates the Brothers but also the investigators.
6. Be that as it may. What perplexed us, and drew
our attention is the innocuous prosecution version. The
admitted version of the prosecution is that the appellant/
convict was travelling from Jhuni to Haldwani, and the
distance between the two places is 220 Kms., and that he
was carrying contraband from Jhuni to Haldwani and that
he gave the name of the supplier. The distance between
Jhuni to Someshar, where he is alleged to have been
intercepted and apprehended, is about 91 Kms. The
distance between Bageshwar & Someshwar is near about
40 kilometers. The version is that he was travelling on
foot, and it is not in dispute that the route passes through
desolate and forest areas and comprises of hills. The very
allegation that he was travelling on foot, and was
attempting to cover a distance of 220 Kms between Jhuni
& Haldwani on foot, appears preposterous and raised our
curiosity and demanded a closer appreciation of the
material. Assuming for argument’s sake that the version
of the police is true – that he was indeed on foot, when he
was apprehended, and that he was detained in the
5
morning at about 08:39 hrs on 14.10.2020, the catch is in
the time he is stated to have left his Jhuni village or
Bageshwar town. The prosecution version records that he
had spent the night of 13.10.2020 in Jhuni village. If
assuming that to be correct, then the question that stares
at us is, whether in a matter of few hours, or within 24
hours, a person can travel on foot and cover a distance of
90 Kms within a couple of hours? If his version is taken
then the question is how much time it would take to cover
a distance of about 35 to 40 kilometers between
Bageshwar & Someshwar. This, by itself, creates a serious
doubt about the prosecution version.
7. That apart, certain inherent contradictions in the
FIR further confounded the Bench. In one breath, it is
said that the spot, where he was arrested, was a secluded
spot and in the forest and that there was no independent
witness, and in the same breath, it is said that the spot is
500 meters from the Tehsil office and a mere 1 Kms. from
the habitation, and that the passersby, despite being
requested by the Police, have refused to witness the
various proceedings, like the recovery memo, or the arrest
memo. As noted above, if it was a secluded spot, and in
the forest, naturally pedestrians and passersby may not be
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expected, but if it is a mere 500 meters from the Tehsil
and just a kilometer away from the habitation, then
certainly neutral persons, pedestrians and passersby can
be expected.
8. The other incongruity is the absence of any
independent impartial Gazetted Officer or Magistrate. The
fact that the place, where the recovery or seizure is said to
have been made, is hardly 12 minutes away from the
Police Station, is borne out by the FIR itself, wherein it is
stated that, on receipt of a call from the Head of the SOG,
they left the Police Station at 08:58 A.M. and reached the
spot at 09:10 A.M. is a matter of record and is also part of
the charge-sheet. The vicinity being so close to the Police
Station yet the prosecution would want the Court to
believe that it is an abandoned locality. The fact remains
that, from the said spot, several calls have been made to
several persons, requesting their presence to comply with
the search and seizure procedure mandated under Section
50 of the Narcotic Drugs and Psychotropic Substances Act,
1985 (for short “NDPS Act“). It is pertinent to note that,
even in Section 313 CrPC questioning, the claim of calls
being made to various authorities, requesting their
presence, has also been put to the appellant/ convict, but
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pertinently, not a single CDR of even one of the phones
has been produced, when admittedly the communication
equipment used was mobile phones.
9. The further fact, that raised our curiosity, is not
only the detailed statement recorded by the appellant/
convict, but also his attempts to place on record the
Exhibits D-1 to D-5, which are RTI applications and
replies, to demonstrate that the three government
vehicles, which are shown in the records in the FIR and
the charge-sheet, as having arrived at the spot, had really
not travelled to the said spot. An attempt was made
before the Trial Court and with the authorities, to seek
information of the logbook for the dates 13.10.2020 and
14.10.2020, and the request has been met by the other
wing of the prosecuting police with the answer that no
such information is available, or no such logbook is
available. If the answers to the questions posed under
Section 313 CrPC are appreciated in the light of Exhibits
D1 to D5, produced on behalf of the appellant/ convict, it
is apparent that the appellant/ convict was attempting to
demonstrate his case that neither he, nor the complainant,
nor the Dy.S.P./ Gazetted Officer, as mandated under
8
Section 50 of the NDPS Act, had ever travelled to that
spot.
10. The Dy.S.P. has travelled out of his jurisdiction,
i.e. from Ranikhet Circle to Almora Circle. In other words,
and in the words of the appellant/ convict, as answered by
him to the questions posed to him under Section 313
CrPC, the case was a fabrication and he has been falsely
implicated in the case. Prima facie, we assume so, as in
the statement recorded by him before the Court, he has
clearly given the names of certain persons, whom he was
acquainted with, and who were travelling in a car and, as
one of them was working with him in the foodstall, and
being acquainted, he accompanied them in the car, and
even more strange is the fact that despite him naming
third persons as culprits, the prosecution has maintained a
stoic silence. What confounds us further is the inability of
the Court to appreciate this piece of information.
11. One other fact, which creates a suspicion in the
mind of the Court, about the purity of the action against
the appellant, is the insertion in the information memo. In
the information memo, which is marked as Exhibit P-5, it
is stated that the information was given by the officer at
22:14 hrs, i.e. in the night of 14.10.2020, when the time
9
of arrest is shown as 16:35 hrs, i.e. after a full 06 hours
after the arrest, and the fact remains that the arrest was
the last formality that was completed before they left for
the Police Station and as noted above, the time taken to
travel from the spot to the Police Station or from the
Police Station to the spot, is a mere 12 minutes. Even
more shocking is the fact that they spent nearly more than
six hours at the same spot just to wait for the arrival of a
Gazetted Officer, when it is the complainant’s version itself
that the Tehsil was a mere 500 meters away. It is
relevant to reproduce Section 50 of the NDPS Act. The
same reads as under :
“50. Conditions under which search of
persons shall be conducted.–(1) When any officer
duly authorised under section 42 is about to search any
person under the provisions of section 41, section 42 or
section 43, he shall, if such person so requires, take
such person without unnecessary delay to nearest
Gazetted Officer of any of the departments mentioned in
section 42 or to the nearest Magistrate.
[emphasis supplied]
(2) If such requisition is made, the officer may
detain the person until he can bring him before the
Gazetted Officer or the Magistrate referred to in sub-
section (1).
(3) The Gazetted Officer or the Magistrate before
whom any such person is brought shall, if he sees no
reasonable ground for search, forthwith discharge the
person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone
excepting a female.
(5) When an officer duly authorised under section
42 has reason to believe that it is not possible to take
the person to be searched to the nearest Gazetted
10
Officer or Magistrate without the possibility of the person
to be searched parting with possession of any narcotic
drug or psychotropic substance, or controlled substance
or article or document, he may, instead of taking such
person to the nearest Gazetted Officer or Magistrate,
proceed to search the person as provided under
section100 of the Code of Criminal Procedure, 1973 (2 of
1974).0
(6) After a search is conducted under sub-section
(5), the officer shall record the reasons for such belief
which necessitated such search and within seventy-two
hours send a copy thereof to his immediate official
superior.”
12. A bare reading of the above provision would
show that the officer, who intends to conduct a search of
the body, is required to inform the person about the
option available under law to have the search conducted in
the presence of a Gazetted Officer or a Magistrate and if
the person so requires it, the officer authorized under
Sections 41 & 42 shall, without unnecessary delay, take
such person to the nearest Gazetted Officer of any of the
departments mentioned in Section 42, or to the nearest
Magistrate. Sub-section (2) authorizes the Authorized
Officer to detain such person for the purposes of search.
The picture that emerges, after a combined reading of
sub-section (1) and sub-section (2), is that the mandate of
law requires the Authorized Officer to take the person to
the nearest Magistrate or to the Gazetted Officer and that
too without unnecessary delay, and not wait for several
hours for the arrival.
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13. In the case on hand, the facts reveal that there
has been a delay of more than five hours in carrying out
the search. The same is sought to be explained by stating
that they made calls to the Circle Officer, Almora at 10:32,
and as the Circle Officer refused, then a call was made to
the Senior Superintendent of Police at 10:44; then a call
was made to the Sub-Divisional Magistrate (Sadar); then
to Naib Tehsildar, Someshwar; and finally to Circle Officer,
Ranikhet. But, interestingly, neither the call detail records
of the calling officer nor the CDRs of the officers, who were
called upon, have been produced in evidence to explain
and satisfy the Court about the delay, which is contrary to
the provisions of sub-sections (1) & (2) of Section 50 of
NDPS Act, which mandates that there shall not be any
unnecessary delay. It is stated that, ultimately the Area
Officer/ Circle Officer, i.e. the Dy.S.P., Ranikhet arrived at
15:00 hrs., and the time assumes significance, as the
distance between Ranikhet and Someshwar is a mere 46
Kms. Interestingly, the time, at which the Dy.S.P./ Circle
Officer, Ranikhet was contacted is not stated, probably to
prevent scrutiny of the delay. If the arrival is taken as
15:00 hrs or 03:00 P.M., then the Officer has taken more
than 04 hours to travel a mere 46 Kms.
12
14. Apart from these incongruities in the complaint
itself, the shocker is in the judgment, more particularly in
the appreciation of evidence and particularly the
statement made by the appellant/ convict under Section
313 CrPC. In fact, the evidence of P.W.-3, i.e. the
Dy.S.P./ Circle Officer, Ranikhet, who is interchangeably
addressed as Area Officer, prima facie, appears to
contradict the version of the complainant, who has
recorded that he contacted the Area Officer, and that the
calls were made between 10:30 to 10:45. In his evidence
recorded by the Court, in paragraph no. 21, he has
deposed that he has received a call on 14.10.2020 from
the SSP, Almora, who informed him that a person has
been caught with charas, and commanded him to proceed
to the spot. A simple appreciation of the statement would
imply that the SSP was already aware that charas has
been seized, and the Area Officer/ Dy.S.P. was also made
aware of the same, but it is pertinent to note that the
P.W.-3, the Area Officer/ Dy.S.P. does not reveal, as to
what time he received the call from the SSP, but would
state that when he was on the way, he received a call at
01:16. No CDR is placed to demonstrate his statement,
but the same is accepted by the Court as a gospel truth.
We are constrained to, prima facie, observe so, in view of
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the fact that a persistent attempt was made by the
appellant/ convict to demonstrate that none of these
witnesses had ever travelled to the spot.
15. P.W.-3 is the Area Officer of another Circle, i.e.
Ranikhet Circle, while detention of the suspect was in
Almora Circle and why the SSP did not direct the Circle
Officer, Almora, is also a question that has gone unnoticed
by the Trial Court, that too when the complaint reveals
that it was the Circle Officer, Almora, who was first
contacted at 10:32 and it is not in dispute that the Circle
Officer is under the command of the SSP, Almora. As
observed by us, the appellant/ convict could have been
produced before the Naib Tehsildar in a matter of minutes,
but for reasons unknown and not explained to the Court,
the person, instead of being taken before a Gazetted
Officer or the nearest Magistrate without unnecessary
delay, was detained at the spot, which detention, prima
facie, appears to be against the spirit of sub-sections (1) &
(2) of Section 50 of the NDPS Act, which clearly mandates
that such person shall be taken without unnecessary delay
to the nearest Gazetted Officer, or the nearest Magistrate.
In fact, the detention between 10:18 hrs. (A.M.) and
15:00 hrs. (P.M.) prima facie appears to be contrary to the
14
mandate of sub-section (2), which says that detention is
permissible only till he can be brought before the Gazetted
Officer, or the nearest Magistrate. The stringency, or the
rigor of sub-section (2) of Section 50 has to be
appreciated in the light of sub-section (3), wherein the
nearest Gazetted Officer, or the Magistrate, may “before
whom such person is produced, if he sees no reasonable
ground for search, can forthwith discharge the person”. In
other words, a person detained can be virtually set at
liberty by the Gazetted Officer, or the Magistrate. Despite
the rigor of the said provision, the Trial Court has simply
glossed over it and brushed it aside.
16. The observations of the Constitution Bench
judgment of the Hon’ble Apex Court in the case of State
of Punjab v. Baldev Singh, reported in (1999) 6 SCC
172 assumes significance. The Constitution Bench of the
Hon’ble Apex Court has observed in paragraph nos. 25, 28
& 57(3) as under :
“25. To be searched before a gazetted officer or a
Magistrate, if the suspect so requires, is an extremely
valuable right which the legislature has given to the
person concerned having regard to the grave
consequences that may entail the possession of illicit
articles under the NDPS Act. It appears to have been
incorporated in the Act keeping in view the severity of
the punishment. The rationale behind the provision is
even otherwise manifest. The search before a gazetted
officer or a Magistrate would impart much more
authenticity and creditworthiness to the search and
seizure proceeding. It would also verily strengthen the15
prosecution case. There is, thus, no justification for the
empowered officer, who goes to search the person, on
prior information, to effect the search, of not informing
the person concerned of the existence of his right to
have his search conducted before a gazetted officer or a
Magistrate, so as to enable him to avail of that right. It
is, however, not necessary to give the information to the
person to be searched about his right in writing. It is
sufficient if such information is communicated to the
person concerned orally and as far as possible in the
presence of some independent and respectable persons
witnessing the arrest and search. The prosecution must,
however, at the trial, establish that the empowered
officer had conveyed the information to the person
concerned of his right of being searched in the presence
of a Magistrate or a gazetted officer, at the time of the
intended search. Courts have to be satisfied at the trial
of the case about due compliance with the requirements
provided in Section 50. No presumption under Section
54 of the Act can be raised against an accused, unless
the prosecution establishes it to the satisfaction of the
court, that the requirements of Section 50 were duly
complied with. (emphasis supplied by this Court).
28. This Court cannot overlook the context in
which the NDPS Act operates and particularly the factor
of widespread illiteracy among persons subject to
investigation for drug offences. It must be borne in mind
that severer the punishment, greater has to be the care
taken to see that all the safeguards provided in a statute
are scrupulously followed. We are not able to find any
reason as to why the empowered officer should shirk
from affording a real opportunity to the suspect, by
intimating to him that he has a right “that if he requires”
to be searched in the presence of a gazetted officer or a
Magistrate, he shall be searched only in that manner. As
already observed the compliance with the procedural
safeguards contained in Section 50 are intended to serve
a dual purpose — to protect a person against false
accusation and frivolous charges as also to lend
creditability to the search and seizure conducted by the
empowered officer. The argument that keeping in view
the growing drug menace, an insistence on compliance
with all the safeguards contained in Section 50 may
result in more acquittals does not appeal to us. If the
empowered officer fails to comply with the requirements
of Section 50 and an order or acquittal is recorded on
that ground, the prosecution must thank itself for its
lapses. Indeed in every case the end result is important
but the means to achieve it must remain above board.
The remedy cannot be worse than the disease itself. The
legitimacy of the judicial process may come under a
cloud if the court is seen to condone acts of lawlessness
conducted by the investigating agency during search
operations and may also undermine respect for the law
16
and may have the effect of unconscionably
compromising the administration of justice. That cannot
be permitted.
57. On the basis of the reasoning and discussion
above, the following conclusions arise:
(1)……
(2)……
(3) That a search made by an empowered officer, on
prior information, without informing the person of his
right that if he so requires, he shall be taken before a
gazetted officer or a Magistrate for search and in case he
so opts, failure to conduct his search before a gazetted
officer or a Magistrate, may not vitiate the trial but
would render the recovery of the illicit article suspect
and vitiate the conviction and sentence of an accused,
where the conviction has been recorded only on the
basis of the possession of the illicit article, recovered
from his person, during a search conducted in violation
of the provisions of Section 50 of the Act.”
17. In the instant case, the complaint itself records
that there was prior information, and the complainant was
called to take part in the search. In that view, as held by
the Hon’ble Apex Court, the rigors of Section 50 of the
NDPS Act applies with all force. In fact, this Bench has
been witness to any number of prosecutions, in cases
relating to narcotic substances, where the Gazetted Officer
is one, who hails from the Department itself. If the said
position is accepted, then the requirement of independent
and respectable persons, as observed by the Hon’ble Apex
Court, is rendered redundant. In fact, the facts narrated
above, if viewed in the backdrop of the answers elicited
before the Court during Section 313 CrPC questioning,
makes the presence of independent and respectable
17
persons inevitable and mandatory. The requirement of
law to produce a person, without unnecessary delay,
either before the Gazetted Officer, or a Magistrate, would
have completely eliminated the chance of the accused to
allege otherwise, and as held by the Constitution Bench of
the Hon’ble Apex Court, it would have verily established
the credibility of the search.
18. That apart, the other serious lacunae that we
have observed is the appreciation of the answers recorded
in response to the questions posed by the Court under
Section 313 CrPC questioning. The manner and method of
appreciation of the answers elicited under Section 313
CrPC questioning has been appreciated by the Hon’ble
Apex Court in the case of Sanatan Naskar and another
v. State of West Bengal, (2010) 8 SCC 249. In
paragraph nos. 21 & 22, the Hon’ble Apex Court has held
as under :
“21. The answers by an accused under Section 313
CrPC are of relevance for finding out the truth and
examining the veracity of the case of the prosecution.
The scope of Section 313 CrPC is wide and is not a mere
formality. Let us examine the essential features of this
section and the principles of law as enunciated by the
judgments which are the guiding factors for proper
application and consequences which shall flow from the
provisions of Section 313 CrPC.
22. As already noticed, the object of recording the
statement of the accused under Section 313 CrPC is to
put all incriminating evidence to the accused so as to
provide him an opportunity to explain such incriminating18
circumstances appearing against him in the evidence of
the prosecution. At the same time, also permit him to
put forward his own version or reasons, if he so chooses,
in relation to his involvement or otherwise in the crime.
The court has been empowered to examine the accused
but only after the prosecution evidence has been
concluded. It is a mandatory obligation upon the court
and, besides ensuring the compliance therewith, the
court has to keep in mind that the accused gets a fair
chance to explain his conduct. The option lies with the
accused to maintain silence coupled with simpliciter
denial or, in the alternative, to explain his version and
reasons for his alleged involvement in the commission of
crime. This is the statement which the accused makes
without fear or right of the other party to cross-examine
him. However, if the statements made are false, the
court is entitled to draw adverse inferences and pass
consequential orders as may be called for in accordance
with law. The primary purpose is to establish a direct
dialogue between the court and the accused and to put
every important incriminating piece of evidence to the
accused and grant him an opportunity to answer and
explain. Once such a statement is recorded, the next
question that has to be considered by the court is to
what extent and consequences such statement can be
used during the enquiry and the trial. Over the period of
time, the courts have explained this concept and now it
has attained, more or less, certainty in the field of
criminal jurisprudence.”
(emphasis supplied)
19. From a reading of the above, the importance of
the answers, and the role of the Trial Court to examine the
same for the purpose of examining the veracity of the case
of the prosecution has been impressed upon. The opening
sentence of paragraph no. 21 is a telling statement,
regarding the importance and relevance of the answers
elicited during the questioning under Section 313 CrPC.
20. The Hon’ble Apex Court, by its earlier judgment
in the case of State of U.P. v. Lakhmi, (1998) 4 SCC
336, has been pleased to hold that the use of the words
19
“may be taken into consideration in such enquiry or trial”
amounts to a legislative guideline for the Court to give due
weightage to such answers. In paragraph nos. 9 & 10, the
Hon’ble Apex Court has held as under :
“9. Sub-section (4) of Section 313 of the Code
contains necessary support to the legal position that
answers given by the accused during such examination
are intended to be considered by the court. The words
“may be taken into consideration in such enquiry or trial”
in sub-section (4) would amount to a legislative
guideline for the court to give due weight to such
answers, though it does not mean that such answers
could be made the sole basis of any finding.
10. Time and again, this Court has pointed out
that such answers of the accused can well be taken into
consideration in deciding whether the prosecution
evidence can be relied on, and whether the accused is
liable to be convicted of the offences charged against
him; vide Sampat Singh v. State of Rajasthan [(1969) 1
SCC 367] ; Jethamal Pithaji v. Asstt. Collector of
Customs [(1974) 3 SCC 393 : 1973 SCC (Cri) 958]
; Rattan Singh v. State of H.P. [(1997) 4 SCC 161 :
1997 SCC (Cri) 525].”
21. In the case of Rattan Singh v. State of H.P.,
(1997) 4 SCC 161, the Hon’ble Apex Court, while
examining the relevance of examination of accused under
Section 313 CrPC, has been pleased to hold that
“examination of the accused under Section 313 of the
Code is not a mere formality. Answers given by the
accused to the questions put to him during such
examination have a practical utility for criminal courts.
Apart from affording an opportunity to the delinquent to
explain incriminating circumstances against him, they
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would help the court in appreciating the entire evidence
adduced in the court during trial.”
22. The Hon’ble Apex Court in the case of
Premchand v. State of Maharashtra, (2023) 5 SCC
522, while examining the scope of sub-section (1) of
Section 313 CrPC, has prioritized the necessity to frame
relevant questions, and has been pleased to place reliance
on a few of its own rulings. In paragraph nos. 13, 14, 15,
16, 17, 18, 19 & 20, the Hon’ble Supreme Court has held
as follows :
“13. There is a plethora of judicial
pronouncements on consideration of Section 313CrPC, a
few of which need to be noted at this stage.
14. A Bench of three Hon’ble Judges of this Court
in State of U.P. v. Lakhmi [State of U.P. v. Lakhmi,
(1998) 4 SCC 336 : 1998 SCC (Cri) 929] has extensively
dealt with the aspect of value or utility of a statement
under Section 313CrPC. The object of Section 313CrPC
was explained by this Court in Sanatan Naskar v. State
of W.B. [Sanatan Naskar v. State of W.B., (2010) 8 SCC
249 : (2010) 3 SCC (Cri) 814] The rationale behind the
requirement to comply with Section 313CrPC was
adverted to by this Court in Reena Hazarika v. State of
Assam [Reena Hazarika v. State of Assam, (2019) 13
SCC 289 : (2019) 4 SCC (Cri) 546] . Close on the heels
thereof, in Parminder Kaur v. State of Punjab [Parminder
Kaur v. State of Punjab, (2020) 8 SCC 811 : (2020) 3
SCC (Cri) 914] , this Court restated the importance of
Section 313CrPC upon noticing the view taken in Reena
Hazarika [Reena Hazarika v. State of Assam, (2019) 13
SCC 289 : (2019) 4 SCC (Cri) 546] and M.
Abbas v. State of Kerala [M. Abbas v. State of Kerala,
(2001) 10 SCC 103 : 2002 SCC (Cri) 1270] .
15. What follows from these authorities may
briefly be summarised thus:
15.1. Section 313CrPC [clause (b) of sub-section
(1)] is a valuable safeguard in the trial process for the
accused to establish his innocence.
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15.2. Section 313, which is intended to ensure a
direct dialogue between the court and the accused, casts
a mandatory duty on the court to question the accused
generally on the case for the purpose of enabling him to
personally explain any circumstances appearing in the
evidence against him.
15.3. When questioned, the accused may not
admit his involvement at all and choose to flatly deny or
outrightly repudiate whatever is put to him by the court.
15.4.The accused may even admit or own
incriminating circumstances adduced against him to
adopt legally recognised defences.
15.5. An accused can make a statement without
fear of being cross-examined by the prosecution or the
latter having any right to cross-examine him.
15.6. The explanations that an accused may
furnish cannot be considered in isolation but have to be
considered in conjunction with the evidence adduced by
the prosecution and, therefore, no conviction can be
premised solely on the basis of the Section 313
statement(s).
15.7. Statements of the accused in course of
examination under Section 313, since not on oath, do
not constitute evidence under Section 3 of the Evidence
Act, yet, the answers given are relevant for finding the
truth and examining the veracity of the prosecution
case.
15.8. Statement(s) of the accused cannot be
dissected to rely on the inculpatory part and ignore the
exculpatory part and has/have to be read in the whole,
inter alia, to test the authenticity of the exculpatory
nature of admission.
15.9. If the accused takes a defence and proffers
any alternate version of events or interpretation, the
court has to carefully analyse and consider his
statements.
15.10. Any failure to consider the accused’s
explanation of incriminating circumstances, in a given
case, may vitiate the trial and/or endanger the
conviction.
16. Bearing the above well-settled principles in
mind, every criminal court proceeding under clause (b)
of sub-section (1) of Section 313 has to shoulder the
onerous responsibility of scanning the evidence after the
prosecution closes its case, to trace the incriminating
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circumstances in the evidence against the accused and
to prepare relevant questions to extend opportunity to
the accused to explain any such circumstance in the
evidence that could be used against him. Prior to the
amendment of Section 313 in 2009, the courts alone had
to perform this task. Instances of interference with
convictions by courts of appeal on the ground of failure
of the trial court to frame relevant questions and to put
the same to the accused were not rare.
17. For toning up the criminal justice system and
ensuring a fair and speedy trial, with emphasis on
cutting down delays, Parliament amended Section 313 in
2009 and inserted sub-section (5), thereby enabling the
court to take the assistance of the Public Prosecutor and
defence counsel in preparing such questions [the first
part of sub-section (5)]. Ideally, with such assistance
(which has to be real and not sham to make the effort
effective and meaningful), one would tend to believe
that the courts probably are now better equipped to
diligently prepare the relevant questions, lest there be
any infirmity. However, judicial experience has shown
that more often than not, the time and effort behind
such an exercise put in by the trial court does not
achieve the desired result. This is because either the
accused elects to come forward with evasive denials or
answers questions with stereotypes like “false”, “I don’t
know”, “incorrect”, etc. Many a time, this does more
harm than good to the cause of the accused.
18. For instance, if facts within the special
knowledge of the accused are not satisfactorily
explained, that could be a factor against the accused.
Though such factor by itself is not conclusive of guilt, it
becomes relevant while considering the totality of the
circumstances. A proper explanation of one’s conduct or
a version different from the prosecution version, without
being obliged to face cross-examination, could provide
the necessary hint or clue for the court to have a
different perspective and solve the problem before it.
The exercise under Section 313 instead of being
ritualistic ought to be realistic in the sense that it should
be the means for securing the ends of justice; instead of
an aimless effort, the means towards the end should be
purposeful. Indeed, it is optional for the accused to
explain the circumstances put to him under Section 313,
but the safeguard provided by it and the valuable right
that it envisions, if availed of or exercised, could prove
decisive and have an effect on the final outcome, which
would in effect promote utility of the exercise rather
than its futility.
19. Once a written statement is filed by the
accused under sub-section (5) of Section 313CrPC and
the court marks it as an exhibit, such statement must be
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treated as part of the accused’s statement under sub-
section (1) read with sub-section (4) thereof. In view of
the latter sub-section, the written statement has to be
considered in the light of the evidence led by the
prosecution to appreciate the truthfulness or otherwise
of such case and the contents of such statement
weighed with the probabilities of the case either in
favour of the accused or against him.
20. This is a case where it does not appear from
the records that the written statement (Ext. 96) engaged
the attention of both the trial court as well as the High
Court. Applying the principles noted above and for the
reasons discussed below, there can be no quarrel that
non-consideration of Ext. 96, to a limited extent, in
relation to recording of conviction and consequently
imposition of sentence, has rendered it vulnerable to
interference.
(emphasis supplied)
23. From a reading of the above and if read in
conjunction with the statement recorded by the accused to
Question Nos. 43 & 44, in our prima facie opinion, it was
required of the Trial Court to direct further investigation,
but it has unfortunately resorted to a convoluted approach
by trying to make out a case against the accused by
inferring certain facts, which otherwise were required to be
demonstrated by the investigator/ prosecution. It has also
not deemed it fit to exercise the powers vested in it under
Section 319 CrPC. It is beyond the realm of criminal
jurisprudence to infer a fact, which is a matter of proof.
24. The very fact that the accused repeatedly
questioned the veracity of the seizure by repeatedly
asserting that the seizure and the arrest did not take place
at the place recorded in the charge-sheet and that all the
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proceedings were drawn in the Police Station was
sufficient for the Trial Court to have called upon the
prosecution to place material and demonstrate their claim
that the appellant/ convict was detained near the iron
bridge, which was about 500 meters from the Tehsil
Office, and the said fact could have been easily
demonstrated by placing on record the CDRs of the
complainant, or the Head of the SOG, and the CDRs of the
Dy.S.P./ Area Officer, Ranikhet. The extraordinary delay
in conducting the search, that is of nearly 5 ½ hours
unexplained delay, creates a ring of truth around the
statement of the accused.
25. The fact that, despite repeated assertion of the
accused that the proceedings were drawn in the Police
Station and he was not arrested at the place mentioned in
the complaint and the charge-sheet, it was incumbent on
the prosecution to place the best evidence available to
demonstrate their case and the truth. It is no more res
integra that the endeavor of all Courts is the search for
truth and truth alone. Despite being well aware of the
claim of the accused, the prosecution has not placed even
an iota of material to dispel the doubt. In fact, the
statement of the accused before the Court during Section
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313 CrPC questioning, would discount the presence of the
complainant itself and would assert that the vehicle, in
which he was a mere passenger, was stopped by the
Special Operations Group at a little distance from
Bageshwar. The best possible evidence to disprove the
same would have been the CDRs. In fact, a determined
attempt has been made, and documents have been placed
by the accused as Exhibit D1-D4, which clearly goes to
show that information regarding the running of the official
vehicles have been suppressed, and not provided. It is no
more res integra that any circumstance or material, which
is in favour of the accused, ought to be appreciated in
favour of the accused. Prima facie, the material and
evidence on record cast a serious doubt on the prosecution
version itself. Neither the prosecution, nor the Court has
even deemed it fit to question the persons named by the
accused/ appellant, despite a categorical assertion by the
accused.
26. The failure to place the best evidence before the
Court, i.e. the CDRs and the extracts of the logbook
relating to various official vehicles, casts a serious doubt
on the veracity and the credibility of the prosecution
version, and also raises a question-mark on the
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creditworthiness of the oral evidence led-in in this regard.
The failure of the police to produce the accused before a
Gazetted Officer, or a Magistrate, without unnecessary
delay, also creates a doubt, regarding the credibility of the
prosecution version, and an inference of innocence of the
accused can be drawn.
27. For the aforesaid reasons, the Bail Application
(IA No. 02/2024) is allowed. The sentence of the
appellant/ applicant is suspended. The appellant/
applicant is directed to be released on bail forthwith, if not
required in any other case, subject to the appellant/
applicant executing self-bond for a sum of Rs. 25,000/-,
and furnishing one solvent surety for the like sum to the
satisfaction of the jurisdictional Magistrate.
_______________
G. NARENDAR, C.J.
_____________
ALOK MAHRA, J.
Dt: 26th August, 2025
Rahul
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