Full Judgment Text
2025 INSC 738
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 490 OF 2025
(ARISING OUT OF SLP(CRIMINAL) NO. 2629 OF 2012)
RAMJI PRASAD JAISWAL @
RAMJEE PRASAD JAISWAL AND ORS. APPELLANT(S)
VERSUS
STATE OF BIHAR RESPONDENT(S)
J U D G M E N T
UJJAL BHUYAN, J.
This appeal by special leave arises out of the
judgment and order dated 24.11.2011 in Criminal Appeal
(SJ) No. 418/2006 passed by the High Court of Judicature at
Patna. By the aforesaid judgment and order dated
Signature Not Verified
24.11.2011, a learned Single Judge of the High Court of
Digitally signed by
ASHISH KONDLE
Date: 2025.05.20
17:10:55 IST
Reason:
Judicature at Patna (High Court) dismissed Criminal Appeal
(SJ) No. 430 of 2006 (Shiv Narayan Bansal and another Vs.
State of Bihar) and Criminal Appeal (SJ) No. 418 of 2006
(Ramji Prasad Jaiswal alias Ramjee Prasad Jaiswal and two
others Vs. State of Bihar).
2 . In this appeal, we are concerned with the decision
of the High Court dated 24.11.2011 in respect of Criminal
Appeal (SJ) No. 418 of 2006. The three appellants in this case
are:
1. Ramji Prasad Jaiswal alias Ramjee Prasad
Jaiswal,
2. Ashok Kumar Jaiswal, and
3. Bal Mukund Jaiswal.
3. It may be mentioned that appellants along with the
appellants of Criminal Appeal (SJ) No.430 of 2006 were tried
by the Court of learned Special Judge, Central Bureau of
Investigation (CBI), South Bihar, Patna (‘CBI Court”
hereinafter) in Special Case No. 52/1983 for allegedly
committing offences under Sections 420, 440, 468, 471 and
120B of the Indian Penal Code, 1860 (IPC) read with Section
5(2) and 5(1)(d) of the Prevention of Corruption Act, 1947.
2
3.1. By the judgment and order dated 29.05.2006,
appellants in both the criminal appeals were held guilty of
committing offences under Sections 420, 468, 471 and 120B
IPC read with Section 5(2) and 5(1)(d) of the Prevention of
Corruption Act, 1947 (briefly ‘the PC Act’ hereinafter).
Accordingly, appellants in both the appeals were directed to
suffer rigorous imprisonment (RI) for three years under
Section 420 IPC and also to pay fine of rupees forty thousand.
They were further directed to suffer RI for three years under
Section 468 IPC besides paying fine of rupees five thousand.
That apart, each of the appellants were directed to suffer RI
for two years and one year respectively under Section 471
read with Sections 468, 420 and 120B IPC. The substantive
sentence of imprisonment of one year was inclusive of the
sentence awarded to each of the appellants for the offence
under Section 5(2) read with Section 5(1)(d) of the PC Act. It
was directed that the sentences imposed were to run
concurrently.
3
4. Aggrieved by their conviction and sentence, all the
convicts filed two criminal appeals before the High Court,
being Criminal Appeal (SJ) Nos. 418 and 430 of 2006. It may
be mentioned that after filing of appeal in the High Court, the
second appellant Chetharu Singh in Criminal Appeal (SJ)
No.430 of 2006 passed away. Therefore, the appeal qua him
stood abated. The said appeal proceeded against the
remaining sole appellant Shiv Narayan Bansal.
4.1. High Court vide the common judgment and order
dated 24.11.2011 came to the conclusion that the appellants
were appropriately convicted and correctly sentenced.
Accordingly, both the appeals were dismissed.
5. As noted above, appellants in Criminal Appeal (SJ)
No.418 of 2006: (1) Ramji Prasad Jaiswal alias Ramjee Prasad
Jaiswal (2) Ashok Kumar Jaiswal and (3) Bal Mukund Jaiswal
preferred the related SLP (Criminal) No. 2629 of 2012.
6. By order dated 26.03.2012, this Court after
condoning the delay issued notice qua appellant Nos.1 and 2
on the question of sentence only. In respect of appellant No.3,
4
notice was issued on the question of sentence as also on the
question of his being a juvenile on the date of commission of
offence.
7. On 21.09.2012, this Court considered the plea of
juvenility raised by appellant No.3. As per the matriculation
certificate, appellant No.3 was born on 24.12.1965 which
would mean that he was around 17 years of age in December
1982 when the offence in question was allegedly committed
by him. Learned Additional Solicitor General upon
instructions submitted that according to the preliminary
enquiry made by CBI, the certificate relied upon by appellant
was found to be genuine. Therefore, this Court directed the
Special Judge to conduct an enquiry in terms of Section 7A of
the Juvenile Justice (Care and Protection of Children) Act,
2000 to record a finding on the question qua juvenility of
appellant No.3 and thereafter to submit a report to this Court.
By the said order, this Court enlarged all the three appellants
on bail and also suspended the remainder of the sentences
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imposed on the appellants. Order dated 21.09.2012 reads as
under:
Petitioner No. 3 has filed Crl. M.P. No. 11269 of
2012 inter alia pointing out that he was a juvenile within
the meaning of The Juvenile Justice (Care and Protection
of Children) Act, 2000 on the date of the commission of
the offence. He has, in support of that assertion placed
reliance upon two documents one of which happens to be
the matriculation certificate issued by the Bihar School
Examination Board. According to that certificate,
petitioner No. 3 was born on 24.12.1965 meaning
thereby that he was around 17 years of age in December,
1982 when the offence in question was allegedly
committed by him. On 17.08.2012, when this special
leave petition came up for orders before us we had
directed Mr. H.P. Raval, Additional Solicitor General to
take instructions as to the genuineness of the certificate
relied upon by the petitioner. Mr. Rajiv Nanda, learned
counsel for the respondent CBI today submits on
instructions that according to the preliminary inquiry
made by the CBI, Patna the certificate relied upon by the
petitioner in the application has been found to be
genuine. That being so, a case for holding an inquiry
under Section 7A of the Act in regard to juvenility of
petitioner No.3 has been made out. We accordingly direct
the Special Judge to conduct an inquiry in terms of
Section 7A of The Juvenile Justice (Care and Protection
6
of Children) Rules, 2007, summon the requisite
documents from the Board of Secondary Education,
record other evidence if any produced in regard to the
question of juvenility of petitioner No.3, record a finding
on the question and submit a report to this Court
expeditiously but not later than three months from the
date a copy of this order is received by the said court.
Mr. Nagendra Rai, learned counsel for petitioner
No.3 submits that petitioner No. 3 shall appear before the
trial court if enlarged on bail and also produce the
original certificates relied upon by him in support of his
claim. Mr. Rai further contends that petitioner No. 1,
Ramji Prasad is nearly 72 years old with multiple
ailments and has already undergone seven years of
imprisonment. So also petitioner No.2, Ashok Kumar
Jaiswal has undergone seven months imprisonment out
of a total of three years awarded to them. He further
states that out of total amount of Rs.13,29,266/-
allegedly swindled by the petitioners, not a penny has
been received or misappropriated by the petitioners in
this appeal even according to the prosecution. Appellant
Shiv Narain Banshal in the connected appeal is said to
have received Rs.12,57,000/- while the remaining
amount was taken away by one other accused person
who has since died. He urged that keeping in view the
totality of the circumstances the petitioners deserve to be
enlarged on bail. Prima facie we find merit in that
contention. We accordingly direct that Ramji Jaiswal,
7
Ashok Kumar and Bal Mukund shall stand released on
bail on their furnishing bail bonds in a sum of
Rs.20,000/- with two sureties each in the like amount to
the satisfaction of the trial court. The remainder of the
sentence awarded to the said petitioners shall on that
condition remain suspended.
The petition shall be listed for final hearing on a
non-miscellaneous day after the report is received from
the trial court. A copy of this order shall be forwarded to
the CBI, Patna for appropriate action.
8. Order dated 05.01.2015 indicates that report from
the trial court was received.
9. Finally, the matter was heard on 29.01.2005 on
which date leave was granted.
10. Relevant facts may be briefly noted.
11. The case relates to a period between September,
1982 to December, 1982. At that point of time deceased
accused Ajay Kumar Srivastava was the Branch Manager of
State Bank of India, Agriculture Market Yard Branch, Mohania
(briefly ‘SBI’ hereinafter). The allegation was that Ajay Kumar
Srivastava misused his official position and conspired with
8
deceased appellant Chetharu Singh (proprietor of M/s
Bishnujee Bhandar) and appellant Shiv Narayan Bansal
(proprietor of M/s Bansal Stores, Mohania) along with the
three present appellants i.e. Ramji Prasad Jaiswal @ Ramjee
Prasad Jaiswal and his two sons Bal Mukund Jaiswal and
Ashok Kumar Jaiswal thereby fraudulently and dishonestly
obtained payment of Rs. 71,456.00 to Chetharu Singh and Rs.
12,57,810.00 to Shiv Narayan Bansal against certain bills
which were accompanied by fake transport receipts issued by
the present three appellants, purportedly on behalf of M/s
Rohtas Carriers, showing consignment of grains of different
consignees. In the process, SBI suffered loss to the tune of
Rs.13,29,266.00 as the principal amount.
12. M/s Bishnujee Bhandar and M/s Bansal Stores had
current accounts in SBI. M/s Rohtas Carriers was shown as
transport agency which was being run by the present three
appellants. Allegation was that all the bills were fake. By
entering into criminal conspiracy by and between the accused,
9
they had obtained the above payment illegally and
fraudulently.
13. As regards M/s Rohtas Carriers and the present
three appellants are concerned, the allegation was that M/s
Rohtas Carriers neither had a vehicle of its own nor had any
godown or business premises or branch or office at Mohania.
In fact, it had no business in the said area. Consignment notes
issued by the present appellants were fake. Therefore, they
were also part of the criminal conspiracy whereby and
whereunder wrongful loss was caused to the SBI to the tune of
Rs.13,29,266.00.
14. During the trial, prosecution examined as many as
twenty seven witnesses and exhibited a large number of
documents. Upon consideration of the evidence tendered, the
trial court convicted and sentenced the appellants as above.
As already noted, the two criminal appeals filed came to be
dismissed by the High Court vide the impugned judgment and
order dated 24.11.2011.
10
15. Before we proceed to record the submissions of
learned counsel for the parties, it would be appropriate to
highlight the relevant dates:
1. Two FIRs were registered by CBI on 23.06.1983
wherein the appellants and others were named as
accused.
2. CBI filed chargesheet on 31.12.1984.
3. Charges were framed by the learned Special Judge,
CBI Court on 02.09.1986.
4. Thereafter, the trial commenced.
5. At the conclusion of recording of evidence of the
prosecution witnesses, statements of the appellants
were recorded on 04.01.2006 under Section 313 of
the Code of Criminal Procedure, 1973 (CrPC).
6. Trial Court convicted and sentenced the appellants
as above on 29.05.2006.
7. High Court dismissed both the criminal appeals vide
the judgment and order dated 24.11.2011.
11
16. Learned senior counsel for the appellant submits
that since leave is being granted, all legal contentions are now
open to the appellants.
16.1. Referring to the statements of the appellants under
Section 313 Cr.P.C., he submits that those were recorded in a
most mechanical manner. The incriminating circumstances
which had come on record against the appellants in the
prosecution evidence were not put to them when they were
examined under Section 313 CrPC. Only four general
questions were put. She submits that because of such
irregularity, grave prejudice was caused to the appellants.
16.2. Because of failure of the courts below to address this
issue, grave prejudice was caused to the appellants. In any
case, since a considerable period of about two decades has
lapsed, it is not practically feasible to revert back to the trial
court to restart the trial proceedings from the stage of
recording of statements of the appellants under Section 313
CrPC. Therefore, on this ground alone the order of the trial
12
court as well as that of the High Court are liable to be
appropriately interfered with.
16.3. Another submission of learned senior counsel for
the appellants is that appellant No. 3 Bal Mukund Jaiswal was
below 18 years of age during the period September, 1982 to
December, 1982 i.e. the period to which the offence and the
chargesheet relates. Therefore, on the date of commission of
offence he was a juvenile. Though this ground was not taken
before the courts below, she submits that it is settled law that
a plea of juvenility of an accused/convict can be taken at any
stage.
16.4. Learned senior counsel thereafter has referred to
the matriculation certificate of appellant No. 3 which shows his
date of birth as 24.12.1965 which would mean that he was
aged about 17 years of age in December, 1982. Thereafter, she
has referred to the order of this Court dated 21.09.2012 as well
as to the finding of the Special Judge on the question of
juvenility.
13
16.5. It is, therefore, submitted that all the appellants are
liable to be acquitted. Firstly, for failure of the court to comply
with the requirements of Section 313 Cr.P.C. causing great
prejudice to the appellants. Secondly, in so far appellant No. 3
is concerned, he being a juvenile on the date of commission of
the offence, therefore, the impugned conviction and sentence
qua him cannot be sustained. Consequently, the appeal should
be allowed.
17. Per contra, learned Additional Solicitor General
submits that in so far appellant Nos. 1 and 2 are concerned,
their involvement in the commission of the offence has been
fully established. Learned Special judge on the basis of the
materials on record had rightly convicted them which has been
affirmed by the High Court in the impugned judgment.
17.1. He further submits that in so far alleged infraction
of Section 313 Cr.P.C. is concerned, learned Special Judge had
brought to the notice of the appellant the gist of the evidence
qua the said appellants which had come on record. Therefore,
14
there was substantial compliance to the requirements of
Section 313 Cr.P.C.
17.2. He submits that even if we proceed on the
assumption that there has been violation of Section 313
Cr.P.C., appellant Nos. 1 and 2 should not be let off on a
technicality which is to be weighed against the totality of the
evidence on record. In other words, he submits that on a plea
of technicality, appellants should not be let off in as much as
prosecution was able to establish their guilt.
17.3. Further, in so far appellant No. 3 is concerned,
learned Additional Solicitor General submits that now that the
trial court has found him to be a juvenile on the date of
commission of the offence, this Court may pass appropriate
order.
18. Submissions made by learned counsel for the
parties have received the due consideration of the Court.
19. Let us first deal with the question of juvenility qua
appellant No. 3. It has come on record that appellant No. 3
relied upon the matriculation certificate issued by the Bihar
15
School Examination Board as per which his date of birth is
24.12.1965. This would mean that he was around 17 years of
age during the period September, 1982 to December, 1982
when the offence in question was allegedly committed by him.
In Court herein, learned counsel representing CBI submitted
on instructions that according to preliminary enquiry made by
CBI, the certificate relied upon by appellant No. 3 was found
to be genuine. Thereafter, this Court vide the order dated
21.09.2012 already alluded to hereinabove directed the
learned Special Judge to hold enquiry under Section 7A of the
Juvenile Justice (Care and Protection of Children) Act, 2000
(briefly, ‘the JJ Act’). Section 7A of the JJ Act laid down the
procedure to be followed when claim of juvenility was raised
before any court. Section 7A read thus:
7A. Procedure to be followed when claim of
juvenility is raised before any court. —(1) Whenever a
claim of juvenility is raised before any court or a court is
of the opinion that an accused person was a juvenile on
the date of commission of the offence, the court shall
make an inquiry, take such evidence as may be necessary
(but not an affidavit) so as to determine the age of such
person, and shall record a finding whether the person is
16
a juvenile or a child or not, stating his age as nearly as
may be:
Provided that a claim of juvenility may be raised
before any court and it shall be recognized at any stage,
even after final disposal of the case, and such claim shall
be determined in terms of the provisions contained in this
Act and the rules made thereunder, even if the juvenile
has ceased to be so on or before the date of
commencement of this Act.
(2) If the court finds a person to be a juvenile on the
date of commission of the offence under sub-section (1),
it shall forward the juvenile to the Board for passing
appropriate orders and the sentence, if any, passed by a
court shall be deemed to have no effect.
20. Therefore, what Section 7A contemplated was that
when a claim of juvenility was raised or if the court was of the
opinion that a person was a juvenile on the date of commission
of the offence, the court was mandated to make an inquiry and
after taking such evidence as might be necessary, was
mandatorily required to record a finding whether the person
was a juvenile or a child or not, stating his age as nearly as
possible. As per the proviso, a claim of juvenility could be
raised before any court and at any stage. If upon such inquiry,
17
court found the person to be a juvenile on the date of
commission of the offence, it had to forward the juvenile to the
Juvenile Justice Board for passing appropriate orders and the
sentence if any, passed by a court, would be deemed to have
no effect.
21. Where a juvenile charged with an offence was
produced before a Juvenile Justice Board then in terms of
Section 14(1) of the JJ Act, the Juvenile Justice Board was
required to hold an inquiry in accordance with the provisions
of the JJ Act and make such order in relation to the juvenile
as it deemed fit. If the Juvenile Justice Board found that the
juvenile had committed an offence then Section 15 of the JJ
Act kicked in. Under Section 15 of the JJ Act, the Juvenile
Justice Board could take various steps as contemplated
thereunder and under sub-section (1)(g) had the discretion to
make an order directing the juvenile to be sent to a special
home for a period of 3 years, which period could be reduced in
an appropriate case in terms of the proviso.
18
22. Pursuant to the order of this Court dated
21.09.2012, learned Special Judge conducted the inquiry and
thereafter passed an order on 28.11.2013. Learned Special
Judge noted that appellant No. 3 had passed matriculation
examination from Seva Niketan High School, Barhuli, (Kaimur)
in the year 1981 and in the matriculation certificate his date
of birth has been mentioned as 24.12.1965. Secretary of Bihar
School Examination Board also stated that appellant No. 3 had
appeared in the matriculation examination in the year 1981.
According to the school register, the date of birth of appellant
No. 3 is 24.12.1965. CBI also confirmed that the date of birth
of appellant No. 3 is 24.12.1965. In that view of the matter,
learned Special Judge declared appellant No. 3 to be a juvenile
on the date of the offence. Relevant portion of the order dated
28.11.2013 of the learned Special Judge reads as under:
18. Thus from the evidence both oral and
documentary it is evident that the convict Balmukund
Jaiswal was juvenile on the date of offence relating to
the instant case.
19
19. In the result the convict Balmukund Jaiswal is
declared juvenile under the provisions of section 7 and
49 of the Act.
23. Therefore, it is established now that appellant No. 3
was a juvenile on the date of commission of the offence i.e. the
period from September, 1982 to December, 1982. He was
convicted by the trial court vide the judgment and order dated
29.05.2006. Ordinarily once an accused person was found to
be a juvenile on the date of commission of the offence, he was
required to be dealt with by the Juvenile Justice Board for
carrying out necessary inquiry in terms of Section 14 of the JJ
Act and thereafter to pass order under Section 15 including an
order directing the juvenile to be sent to a special home for a
period of 3 years. In the instant case, more than four decades
have passed by since commission of the offence. In the
circumstances, it is neither possible nor feasible to remand the
case of appellant No. 3 to the concerned Juvenile Justice Board
to carry out the exercise under Sections 14 and 15 of the JJ
Act. Therefore, the judgment and order of the trial court dated
29.05.2006 as affirmed by the High Court the judgment
vide
20
and order dated 24.11.2011 qua appellant no. 3 are hereby set
aside on the ground of juvenility.
24. Let us now deal with the case of the other two
appellants.
25. Insofar the said appellants are concerned,
prosecution sought to establish their guilt through the
evidence of PW-3 Rameshwar Lal Sharma and PW-25 Ved
Kumar. PW-3 stated that he had started M/s. Rohtas Carriers
in which Ramji Prasad Jaiswal was one of the partners. On
28.11.1979, Ramji Prasad Jaiswal left the partnership. Since
then, M/s. Rohtas Carriers became the proprietorship firm of
PW-3 alone. This witness stated that after 1979, his firm
shifted to Patna. There was no office or business at Mohania of
M/s. Rohtas Carriers thereafter.
26. PW-25 in his evidence stated that he had served
M/s. Rohtas Carriers as a business executive in the year 1978.
Proprietor of M/s. Rohtas Carriers was Rameshwar Lal
Sharma. This firm was established in 1975-1976. He deposed
that Ramji Prasad Jaiswal was earlier one of the partners of
21
M/s. Rohtas Carriers but he had left it in the year 1979. Since
then, the partnership firm was converted into a proprietorship
concern which shifted its office and business to Patna.
Thereafter there was no Rohtas Carriers in existence at
Mohania.
27. In addition to this, prosecution also exhibited a
letter (Exhibit 5) written by Ramji Prasad Jaiswal to the Branch
Manager of Central Bank of India, Fraser Road, Patna. As per
this letter, Ramji Prasad Jaiswal had taken out his entire
shares of partnership from Rohtas Carriers and thereafter he
had no connection with Rohtas Carriers at all. This letter
signed by Ramji Prasad Jaiswal disclosed that Ramji Prasad
Jaiswal had left Rohtas Carriers on 28.11.1979.
28. After conclusion of the prosecution evidence,
statements of the accused persons including the appellants
were recorded under Section 313 CrPC. Insofar the present
appeal is concerned, all the three appellants were asked four
identical questions without putting them to notice the specific
material brought on record by the prosecution witnesses
22
against them. The four identical questions put to appellant No.
1 were as under:
1. Have you heard the statements given by the
witnesses?
2. It has come in the evidence that 14
consignment notes/transport receipts Nos.
616, 617, 140 to 148, 1101, 1102, 625, 635
and 1104 were prepared in the names of M/s
Bansal Stores, Mohania and Vishnuji
Bhandar, Mohania during the period August to
December, 1982?
3. It has also come in the evidence that you in
collusion with accused Ajay Kumar Srivastava,
Shiv Narain Bansal, Chaithakh Singh, Bal
Mukund Jaiswal and Ashok Kumar Jaiswal in
furtherance of a particular conspiracy
transacted with the State Bank of India on the
basis of forged and fabricated documents and
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after depositing Rs. 71,456.00, you cheated
the bank of Rs. 12,57,810.00?
4. Do you have to say anything in your defence?
29. Section 313 CrPC deals with the power of the court
to examine the accused. Section 313 CrPC is as follows:
313. Power to examine the accused .—(1) In every
inquiry or trial, for the purpose of enabling the accused
personally to explain any circumstances appearing in the
evidence against him, the court—
(a) may at any stage, without previously warning the
accused put such questions to him as the court considers
necessary;
(b) shall, after the witnesses for the prosecution have
been examined and before he is called on for his defence,
question him generally on the case:
Provided that in a summons-case, where the court
has dispensed with the personal attendance of the
accused, it may also dispense with his examination
under clause (b).
(2) No oath shall be administered to the accused
when he is examined under sub-section (1).
(3) The accused shall not render himself liable to
punishment by refusing to answer such questions, or by
giving false answers to them.
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(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.
30. In Shivaji Sahabrao Bobade Vs. State of
1
Maharashtra , this Court was examining Section 342 of the old
Code of Criminal Procedure, 1898 which is pari materia to
Section 313 Cr.P.C. and explained the rationale behind such
provision in the following words:
16.................. It is trite law, nevertheless fundamental,
that the prisoner's attention should be drawn to every
inculpatory material so as to enable him to explain it.
This is the basic fairness of a criminal trial and failures
in this area may gravely imperil the validity of the trial
itself, if consequential miscarriage of justice has flowed.
However, where such an omission has occurred it does
not ipso facto vitiate the proceedings and prejudice
1
(1973) 2 SCC 793
25
occasioned by such defect must be established by the
accused. In the event of evidentiary material not being
put to the accused, the court must ordinarily eschew
such material from consideration. It is also open to the
appellate court to call upon the counsel for the accused
to show what explanation the accused has as regards the
circumstances established against him but not put to
him and if the accused is unable to offer the appellate
court any plausible or reasonable explanation of such
circumstances, the Court may assume that no acceptable
answer exists and that even if the accused had been
questioned at the proper time in the trial court he would
not have been able to furnish any good ground to get out
of the circumstances on which the trial court had relied
for its conviction. In such a case, the court proceeds on
the footing that though a grave irregularity has occurred
as regards compliance with Section 342, CrPC, the
omission has not been shown to have caused prejudice
to the accused...
31. Section 313 CrPC came up for consideration in
2
Dharnidhar Vs. State of Uttar Pradesh where this Court
outlined the proper methodology to be adopted by the court
while recording statement of an accused under Section 313
CrPC. This Court held thus:
2
(2010) 7 SCC 759
26
29. The proper methodology to be adopted by the court
while recording the statement of the accused under
Section 313 CrPC is to invite the attention of the accused
to the circumstances and substantial evidence in relation
to the offence, for which he has been charged and invite
his explanation. In other words, it provides an
opportunity to an accused to state before the court as to
what is the truth and what is his defence, in accordance
with law. It was for the accused to avail that opportunity
and if he fails to do so then it is for the court to examine
the case of the prosecution on its evidence with reference
to the statement made by the accused under section 313
CrPC.
32. This Court discussed the purpose of recording the
statement of an accused under Section 313 CrPC in Raj Kumar
3
Singh alias Raju alias Batya Vs. State of Rajasthan and held
as under:
30. In a criminal trial, the purpose of examining the
accused person under Section 313 CrPC is to meet the
requirement of the principles of natural jus-tice i.e. audi
alteram partem. This means that the accused may be
asked to furnish some explanation as regards the
incriminating circumstances associated with him, and
the court must take note of such explanation. In a case
3
(2013) 5 SCC 722
27
of circumstantial evidence, the same is essential to decide
whether or not the chain of circumstances is complete.
No matter how weak the evidence of the prosecution may
be, it is the duty of the court to examine the accused, and
to seek his explanation as regards the incriminating
material that has surfaced against him. The
circumstances which are not put to the accused in his
examination under Section 313 CrPC, cannot be used
against him and have to be excluded from consideration.
33. Again, in Raj Kumar alias Suman Vs. State (NCT of
4
Delhi) , this Court summarized the law as regards Section 313
CrPC in the following manner:
22. The law consistently laid down by this Court
can be summarised as under:
22.1. It is the duty of the trial court to put each
material circumstance appearing in the evidence against
the accused specifically, distinctively and separately. The
material circumstance means the circumstance or the
material on the basis of which the prosecution is seeking
his conviction.
22.2. The object of examination of the accused
under Section 313 is to enable the accused to explain any
circumstance appearing against him in the evidence.
4
(2023) 17 SCC 95
28
22.3. The Court must ordinarily eschew material
circumstances not put to the accused from consideration
while dealing with the case of the particular accused.
22.4. The failure to put material circumstances to
the accused amounts to a serious irregularity. It will
vitiate the trial if it is shown to have prejudiced the
accused.
22.5. If any irregularity in putting the material
circumstance to the accused does not result in failure of
justice, it becomes a curable defect. However, while
deciding whether the defect can be cured, one of the
considerations will be the passage of time from the date
of the incident.
22.6. In case such irregularity is curable, even the
appellate court can question the accused on the material
circumstance which is not put to him.
22.7. In a given case, the case can be remanded to
the trial court from the stage of recording the
supplementary statement of the accused concerned
under Section 313 CrPC.
22.8. While deciding the question whether
prejudice has been caused to the accused because of the
omission, the delay in raising the contention is only one
of the several factors to be considered.
29
34. In a recent decision, this Court in Ashok Vs. State of
5
Uttar Pradesh held as under:
23. In the present case, there is no doubt that
material circumstances appearing in evidence against
the appellant have not been put to him. The version of
the main prosecution witnesses PWs 1 and 2 was not put
to him. The stage of the accused leading defence evidence
arises only after his statement is recorded under Section
313 CrPC. Unless all material circumstances appearing
against him in evidence are put to the accused, he cannot
decide whether he wants to lead any defence evidence.
24. In this case, even the date and place of the
crime allegedly committed by the appellant were not put
to the appellant. What was reportedly seen by PW-2 was
not put to the appellant in his examination. Therefore,
the appellant was prejudiced. Even assuming that failure
to put material to the appellant in his examination is an
irregularity, the question is whether it can be cured by
remanding the case to the trial court.
35. After surveying the law on this print, let us revert
back to the facts of the present case. The manner in which the
trial court had recorded the statements of the appellants under
Section 313 CrPC was not at all in tune with the requirements
5
(2025) 2 SCC 381
30
of the said provision as explained by this Court as discussed
supra.
36. Four questions generally were put to the appellants,
that too, in a most mechanical manner. These questions did
not reflect the specific prosecution evidence which came on
record qua the appellants. As all the incriminating evidence
were not put to the notice of the appellants, therefore, there
was a clear breach of Section 313 CrPC as well as the principle
of audi alteram partem . Certainly, this caused serious
prejudice to the appellants to put forth their case. Ultimately,
such evidence were relied upon by the court to convict the
appellants.
37. Therefore, there is no doubt that such omission,
which is a serious irregularity, has completely vitiated the trial.
Even if we take a more sanguine approach by taking the view
that such omission did not result in the failure of justice, it is
still a material defect albeit curable. In Raj Kumar (supra), this
Court highlighted that while deciding whether such defect can
31
be cured or not, one of the considerations will be the passage
of time from the date of the incident.
38. As we have already noted, the period during which
the offence was allegedly committed was from September, 1982
to December, 1982. Trial was concluded on 29.05.2006.
Nineteen years have gone by since then. At this distant point
of time, instead of aiding the cause of justice, it will lead to
miscarriage of justice if the case qua the two appellants are
remanded to the trial court to restart the trial from the stage
of recording the statements of the accused persons under
Section 313 CrPC. In such circumstances, we are of the
considered opinion that it is neither possible nor feasible to
order such remand. Consequently, appellants are entitled to
the benefit of doubt because of such omission in the recording
of their statements under Section 313 Cr.P.C. since the trial
court had relied on the evidence adverse to the appellants
while convicting them.
39. Therefore, their conviction and sentence has
become untenable. Resultantly, we set aside the judgment and
32
order of the trial court dated 29.05.2006 and that of the High
Court dated 24.11.2011.
40. Since the appellants are on bail, their bail bonds are
hereby cancelled.
41. Criminal appeal is accordingly allowed.
……………………………J.
[ABHAY S. OKA]
……………………………J.
[UJJAL BHUYAN]
NEW DELHI;
MAY 20, 2025.
33
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 490 OF 2025
(ARISING OUT OF SLP(CRIMINAL) NO. 2629 OF 2012)
RAMJI PRASAD JAISWAL @
RAMJEE PRASAD JAISWAL AND ORS. APPELLANT(S)
VERSUS
STATE OF BIHAR RESPONDENT(S)
J U D G M E N T
UJJAL BHUYAN, J.
This appeal by special leave arises out of the
judgment and order dated 24.11.2011 in Criminal Appeal
(SJ) No. 418/2006 passed by the High Court of Judicature at
Patna. By the aforesaid judgment and order dated
Signature Not Verified
24.11.2011, a learned Single Judge of the High Court of
Digitally signed by
ASHISH KONDLE
Date: 2025.05.20
17:10:55 IST
Reason:
Judicature at Patna (High Court) dismissed Criminal Appeal
(SJ) No. 430 of 2006 (Shiv Narayan Bansal and another Vs.
State of Bihar) and Criminal Appeal (SJ) No. 418 of 2006
(Ramji Prasad Jaiswal alias Ramjee Prasad Jaiswal and two
others Vs. State of Bihar).
2 . In this appeal, we are concerned with the decision
of the High Court dated 24.11.2011 in respect of Criminal
Appeal (SJ) No. 418 of 2006. The three appellants in this case
are:
1. Ramji Prasad Jaiswal alias Ramjee Prasad
Jaiswal,
2. Ashok Kumar Jaiswal, and
3. Bal Mukund Jaiswal.
3. It may be mentioned that appellants along with the
appellants of Criminal Appeal (SJ) No.430 of 2006 were tried
by the Court of learned Special Judge, Central Bureau of
Investigation (CBI), South Bihar, Patna (‘CBI Court”
hereinafter) in Special Case No. 52/1983 for allegedly
committing offences under Sections 420, 440, 468, 471 and
120B of the Indian Penal Code, 1860 (IPC) read with Section
5(2) and 5(1)(d) of the Prevention of Corruption Act, 1947.
2
3.1. By the judgment and order dated 29.05.2006,
appellants in both the criminal appeals were held guilty of
committing offences under Sections 420, 468, 471 and 120B
IPC read with Section 5(2) and 5(1)(d) of the Prevention of
Corruption Act, 1947 (briefly ‘the PC Act’ hereinafter).
Accordingly, appellants in both the appeals were directed to
suffer rigorous imprisonment (RI) for three years under
Section 420 IPC and also to pay fine of rupees forty thousand.
They were further directed to suffer RI for three years under
Section 468 IPC besides paying fine of rupees five thousand.
That apart, each of the appellants were directed to suffer RI
for two years and one year respectively under Section 471
read with Sections 468, 420 and 120B IPC. The substantive
sentence of imprisonment of one year was inclusive of the
sentence awarded to each of the appellants for the offence
under Section 5(2) read with Section 5(1)(d) of the PC Act. It
was directed that the sentences imposed were to run
concurrently.
3
4. Aggrieved by their conviction and sentence, all the
convicts filed two criminal appeals before the High Court,
being Criminal Appeal (SJ) Nos. 418 and 430 of 2006. It may
be mentioned that after filing of appeal in the High Court, the
second appellant Chetharu Singh in Criminal Appeal (SJ)
No.430 of 2006 passed away. Therefore, the appeal qua him
stood abated. The said appeal proceeded against the
remaining sole appellant Shiv Narayan Bansal.
4.1. High Court vide the common judgment and order
dated 24.11.2011 came to the conclusion that the appellants
were appropriately convicted and correctly sentenced.
Accordingly, both the appeals were dismissed.
5. As noted above, appellants in Criminal Appeal (SJ)
No.418 of 2006: (1) Ramji Prasad Jaiswal alias Ramjee Prasad
Jaiswal (2) Ashok Kumar Jaiswal and (3) Bal Mukund Jaiswal
preferred the related SLP (Criminal) No. 2629 of 2012.
6. By order dated 26.03.2012, this Court after
condoning the delay issued notice qua appellant Nos.1 and 2
on the question of sentence only. In respect of appellant No.3,
4
notice was issued on the question of sentence as also on the
question of his being a juvenile on the date of commission of
offence.
7. On 21.09.2012, this Court considered the plea of
juvenility raised by appellant No.3. As per the matriculation
certificate, appellant No.3 was born on 24.12.1965 which
would mean that he was around 17 years of age in December
1982 when the offence in question was allegedly committed
by him. Learned Additional Solicitor General upon
instructions submitted that according to the preliminary
enquiry made by CBI, the certificate relied upon by appellant
was found to be genuine. Therefore, this Court directed the
Special Judge to conduct an enquiry in terms of Section 7A of
the Juvenile Justice (Care and Protection of Children) Act,
2000 to record a finding on the question qua juvenility of
appellant No.3 and thereafter to submit a report to this Court.
By the said order, this Court enlarged all the three appellants
on bail and also suspended the remainder of the sentences
5
imposed on the appellants. Order dated 21.09.2012 reads as
under:
Petitioner No. 3 has filed Crl. M.P. No. 11269 of
2012 inter alia pointing out that he was a juvenile within
the meaning of The Juvenile Justice (Care and Protection
of Children) Act, 2000 on the date of the commission of
the offence. He has, in support of that assertion placed
reliance upon two documents one of which happens to be
the matriculation certificate issued by the Bihar School
Examination Board. According to that certificate,
petitioner No. 3 was born on 24.12.1965 meaning
thereby that he was around 17 years of age in December,
1982 when the offence in question was allegedly
committed by him. On 17.08.2012, when this special
leave petition came up for orders before us we had
directed Mr. H.P. Raval, Additional Solicitor General to
take instructions as to the genuineness of the certificate
relied upon by the petitioner. Mr. Rajiv Nanda, learned
counsel for the respondent CBI today submits on
instructions that according to the preliminary inquiry
made by the CBI, Patna the certificate relied upon by the
petitioner in the application has been found to be
genuine. That being so, a case for holding an inquiry
under Section 7A of the Act in regard to juvenility of
petitioner No.3 has been made out. We accordingly direct
the Special Judge to conduct an inquiry in terms of
Section 7A of The Juvenile Justice (Care and Protection
6
of Children) Rules, 2007, summon the requisite
documents from the Board of Secondary Education,
record other evidence if any produced in regard to the
question of juvenility of petitioner No.3, record a finding
on the question and submit a report to this Court
expeditiously but not later than three months from the
date a copy of this order is received by the said court.
Mr. Nagendra Rai, learned counsel for petitioner
No.3 submits that petitioner No. 3 shall appear before the
trial court if enlarged on bail and also produce the
original certificates relied upon by him in support of his
claim. Mr. Rai further contends that petitioner No. 1,
Ramji Prasad is nearly 72 years old with multiple
ailments and has already undergone seven years of
imprisonment. So also petitioner No.2, Ashok Kumar
Jaiswal has undergone seven months imprisonment out
of a total of three years awarded to them. He further
states that out of total amount of Rs.13,29,266/-
allegedly swindled by the petitioners, not a penny has
been received or misappropriated by the petitioners in
this appeal even according to the prosecution. Appellant
Shiv Narain Banshal in the connected appeal is said to
have received Rs.12,57,000/- while the remaining
amount was taken away by one other accused person
who has since died. He urged that keeping in view the
totality of the circumstances the petitioners deserve to be
enlarged on bail. Prima facie we find merit in that
contention. We accordingly direct that Ramji Jaiswal,
7
Ashok Kumar and Bal Mukund shall stand released on
bail on their furnishing bail bonds in a sum of
Rs.20,000/- with two sureties each in the like amount to
the satisfaction of the trial court. The remainder of the
sentence awarded to the said petitioners shall on that
condition remain suspended.
The petition shall be listed for final hearing on a
non-miscellaneous day after the report is received from
the trial court. A copy of this order shall be forwarded to
the CBI, Patna for appropriate action.
8. Order dated 05.01.2015 indicates that report from
the trial court was received.
9. Finally, the matter was heard on 29.01.2005 on
which date leave was granted.
10. Relevant facts may be briefly noted.
11. The case relates to a period between September,
1982 to December, 1982. At that point of time deceased
accused Ajay Kumar Srivastava was the Branch Manager of
State Bank of India, Agriculture Market Yard Branch, Mohania
(briefly ‘SBI’ hereinafter). The allegation was that Ajay Kumar
Srivastava misused his official position and conspired with
8
deceased appellant Chetharu Singh (proprietor of M/s
Bishnujee Bhandar) and appellant Shiv Narayan Bansal
(proprietor of M/s Bansal Stores, Mohania) along with the
three present appellants i.e. Ramji Prasad Jaiswal @ Ramjee
Prasad Jaiswal and his two sons Bal Mukund Jaiswal and
Ashok Kumar Jaiswal thereby fraudulently and dishonestly
obtained payment of Rs. 71,456.00 to Chetharu Singh and Rs.
12,57,810.00 to Shiv Narayan Bansal against certain bills
which were accompanied by fake transport receipts issued by
the present three appellants, purportedly on behalf of M/s
Rohtas Carriers, showing consignment of grains of different
consignees. In the process, SBI suffered loss to the tune of
Rs.13,29,266.00 as the principal amount.
12. M/s Bishnujee Bhandar and M/s Bansal Stores had
current accounts in SBI. M/s Rohtas Carriers was shown as
transport agency which was being run by the present three
appellants. Allegation was that all the bills were fake. By
entering into criminal conspiracy by and between the accused,
9
they had obtained the above payment illegally and
fraudulently.
13. As regards M/s Rohtas Carriers and the present
three appellants are concerned, the allegation was that M/s
Rohtas Carriers neither had a vehicle of its own nor had any
godown or business premises or branch or office at Mohania.
In fact, it had no business in the said area. Consignment notes
issued by the present appellants were fake. Therefore, they
were also part of the criminal conspiracy whereby and
whereunder wrongful loss was caused to the SBI to the tune of
Rs.13,29,266.00.
14. During the trial, prosecution examined as many as
twenty seven witnesses and exhibited a large number of
documents. Upon consideration of the evidence tendered, the
trial court convicted and sentenced the appellants as above.
As already noted, the two criminal appeals filed came to be
dismissed by the High Court vide the impugned judgment and
order dated 24.11.2011.
10
15. Before we proceed to record the submissions of
learned counsel for the parties, it would be appropriate to
highlight the relevant dates:
1. Two FIRs were registered by CBI on 23.06.1983
wherein the appellants and others were named as
accused.
2. CBI filed chargesheet on 31.12.1984.
3. Charges were framed by the learned Special Judge,
CBI Court on 02.09.1986.
4. Thereafter, the trial commenced.
5. At the conclusion of recording of evidence of the
prosecution witnesses, statements of the appellants
were recorded on 04.01.2006 under Section 313 of
the Code of Criminal Procedure, 1973 (CrPC).
6. Trial Court convicted and sentenced the appellants
as above on 29.05.2006.
7. High Court dismissed both the criminal appeals vide
the judgment and order dated 24.11.2011.
11
16. Learned senior counsel for the appellant submits
that since leave is being granted, all legal contentions are now
open to the appellants.
16.1. Referring to the statements of the appellants under
Section 313 Cr.P.C., he submits that those were recorded in a
most mechanical manner. The incriminating circumstances
which had come on record against the appellants in the
prosecution evidence were not put to them when they were
examined under Section 313 CrPC. Only four general
questions were put. She submits that because of such
irregularity, grave prejudice was caused to the appellants.
16.2. Because of failure of the courts below to address this
issue, grave prejudice was caused to the appellants. In any
case, since a considerable period of about two decades has
lapsed, it is not practically feasible to revert back to the trial
court to restart the trial proceedings from the stage of
recording of statements of the appellants under Section 313
CrPC. Therefore, on this ground alone the order of the trial
12
court as well as that of the High Court are liable to be
appropriately interfered with.
16.3. Another submission of learned senior counsel for
the appellants is that appellant No. 3 Bal Mukund Jaiswal was
below 18 years of age during the period September, 1982 to
December, 1982 i.e. the period to which the offence and the
chargesheet relates. Therefore, on the date of commission of
offence he was a juvenile. Though this ground was not taken
before the courts below, she submits that it is settled law that
a plea of juvenility of an accused/convict can be taken at any
stage.
16.4. Learned senior counsel thereafter has referred to
the matriculation certificate of appellant No. 3 which shows his
date of birth as 24.12.1965 which would mean that he was
aged about 17 years of age in December, 1982. Thereafter, she
has referred to the order of this Court dated 21.09.2012 as well
as to the finding of the Special Judge on the question of
juvenility.
13
16.5. It is, therefore, submitted that all the appellants are
liable to be acquitted. Firstly, for failure of the court to comply
with the requirements of Section 313 Cr.P.C. causing great
prejudice to the appellants. Secondly, in so far appellant No. 3
is concerned, he being a juvenile on the date of commission of
the offence, therefore, the impugned conviction and sentence
qua him cannot be sustained. Consequently, the appeal should
be allowed.
17. Per contra, learned Additional Solicitor General
submits that in so far appellant Nos. 1 and 2 are concerned,
their involvement in the commission of the offence has been
fully established. Learned Special judge on the basis of the
materials on record had rightly convicted them which has been
affirmed by the High Court in the impugned judgment.
17.1. He further submits that in so far alleged infraction
of Section 313 Cr.P.C. is concerned, learned Special Judge had
brought to the notice of the appellant the gist of the evidence
qua the said appellants which had come on record. Therefore,
14
there was substantial compliance to the requirements of
Section 313 Cr.P.C.
17.2. He submits that even if we proceed on the
assumption that there has been violation of Section 313
Cr.P.C., appellant Nos. 1 and 2 should not be let off on a
technicality which is to be weighed against the totality of the
evidence on record. In other words, he submits that on a plea
of technicality, appellants should not be let off in as much as
prosecution was able to establish their guilt.
17.3. Further, in so far appellant No. 3 is concerned,
learned Additional Solicitor General submits that now that the
trial court has found him to be a juvenile on the date of
commission of the offence, this Court may pass appropriate
order.
18. Submissions made by learned counsel for the
parties have received the due consideration of the Court.
19. Let us first deal with the question of juvenility qua
appellant No. 3. It has come on record that appellant No. 3
relied upon the matriculation certificate issued by the Bihar
15
School Examination Board as per which his date of birth is
24.12.1965. This would mean that he was around 17 years of
age during the period September, 1982 to December, 1982
when the offence in question was allegedly committed by him.
In Court herein, learned counsel representing CBI submitted
on instructions that according to preliminary enquiry made by
CBI, the certificate relied upon by appellant No. 3 was found
to be genuine. Thereafter, this Court vide the order dated
21.09.2012 already alluded to hereinabove directed the
learned Special Judge to hold enquiry under Section 7A of the
Juvenile Justice (Care and Protection of Children) Act, 2000
(briefly, ‘the JJ Act’). Section 7A of the JJ Act laid down the
procedure to be followed when claim of juvenility was raised
before any court. Section 7A read thus:
7A. Procedure to be followed when claim of
juvenility is raised before any court. —(1) Whenever a
claim of juvenility is raised before any court or a court is
of the opinion that an accused person was a juvenile on
the date of commission of the offence, the court shall
make an inquiry, take such evidence as may be necessary
(but not an affidavit) so as to determine the age of such
person, and shall record a finding whether the person is
16
a juvenile or a child or not, stating his age as nearly as
may be:
Provided that a claim of juvenility may be raised
before any court and it shall be recognized at any stage,
even after final disposal of the case, and such claim shall
be determined in terms of the provisions contained in this
Act and the rules made thereunder, even if the juvenile
has ceased to be so on or before the date of
commencement of this Act.
(2) If the court finds a person to be a juvenile on the
date of commission of the offence under sub-section (1),
it shall forward the juvenile to the Board for passing
appropriate orders and the sentence, if any, passed by a
court shall be deemed to have no effect.
20. Therefore, what Section 7A contemplated was that
when a claim of juvenility was raised or if the court was of the
opinion that a person was a juvenile on the date of commission
of the offence, the court was mandated to make an inquiry and
after taking such evidence as might be necessary, was
mandatorily required to record a finding whether the person
was a juvenile or a child or not, stating his age as nearly as
possible. As per the proviso, a claim of juvenility could be
raised before any court and at any stage. If upon such inquiry,
17
court found the person to be a juvenile on the date of
commission of the offence, it had to forward the juvenile to the
Juvenile Justice Board for passing appropriate orders and the
sentence if any, passed by a court, would be deemed to have
no effect.
21. Where a juvenile charged with an offence was
produced before a Juvenile Justice Board then in terms of
Section 14(1) of the JJ Act, the Juvenile Justice Board was
required to hold an inquiry in accordance with the provisions
of the JJ Act and make such order in relation to the juvenile
as it deemed fit. If the Juvenile Justice Board found that the
juvenile had committed an offence then Section 15 of the JJ
Act kicked in. Under Section 15 of the JJ Act, the Juvenile
Justice Board could take various steps as contemplated
thereunder and under sub-section (1)(g) had the discretion to
make an order directing the juvenile to be sent to a special
home for a period of 3 years, which period could be reduced in
an appropriate case in terms of the proviso.
18
22. Pursuant to the order of this Court dated
21.09.2012, learned Special Judge conducted the inquiry and
thereafter passed an order on 28.11.2013. Learned Special
Judge noted that appellant No. 3 had passed matriculation
examination from Seva Niketan High School, Barhuli, (Kaimur)
in the year 1981 and in the matriculation certificate his date
of birth has been mentioned as 24.12.1965. Secretary of Bihar
School Examination Board also stated that appellant No. 3 had
appeared in the matriculation examination in the year 1981.
According to the school register, the date of birth of appellant
No. 3 is 24.12.1965. CBI also confirmed that the date of birth
of appellant No. 3 is 24.12.1965. In that view of the matter,
learned Special Judge declared appellant No. 3 to be a juvenile
on the date of the offence. Relevant portion of the order dated
28.11.2013 of the learned Special Judge reads as under:
18. Thus from the evidence both oral and
documentary it is evident that the convict Balmukund
Jaiswal was juvenile on the date of offence relating to
the instant case.
19
19. In the result the convict Balmukund Jaiswal is
declared juvenile under the provisions of section 7 and
49 of the Act.
23. Therefore, it is established now that appellant No. 3
was a juvenile on the date of commission of the offence i.e. the
period from September, 1982 to December, 1982. He was
convicted by the trial court vide the judgment and order dated
29.05.2006. Ordinarily once an accused person was found to
be a juvenile on the date of commission of the offence, he was
required to be dealt with by the Juvenile Justice Board for
carrying out necessary inquiry in terms of Section 14 of the JJ
Act and thereafter to pass order under Section 15 including an
order directing the juvenile to be sent to a special home for a
period of 3 years. In the instant case, more than four decades
have passed by since commission of the offence. In the
circumstances, it is neither possible nor feasible to remand the
case of appellant No. 3 to the concerned Juvenile Justice Board
to carry out the exercise under Sections 14 and 15 of the JJ
Act. Therefore, the judgment and order of the trial court dated
29.05.2006 as affirmed by the High Court the judgment
vide
20
and order dated 24.11.2011 qua appellant no. 3 are hereby set
aside on the ground of juvenility.
24. Let us now deal with the case of the other two
appellants.
25. Insofar the said appellants are concerned,
prosecution sought to establish their guilt through the
evidence of PW-3 Rameshwar Lal Sharma and PW-25 Ved
Kumar. PW-3 stated that he had started M/s. Rohtas Carriers
in which Ramji Prasad Jaiswal was one of the partners. On
28.11.1979, Ramji Prasad Jaiswal left the partnership. Since
then, M/s. Rohtas Carriers became the proprietorship firm of
PW-3 alone. This witness stated that after 1979, his firm
shifted to Patna. There was no office or business at Mohania of
M/s. Rohtas Carriers thereafter.
26. PW-25 in his evidence stated that he had served
M/s. Rohtas Carriers as a business executive in the year 1978.
Proprietor of M/s. Rohtas Carriers was Rameshwar Lal
Sharma. This firm was established in 1975-1976. He deposed
that Ramji Prasad Jaiswal was earlier one of the partners of
21
M/s. Rohtas Carriers but he had left it in the year 1979. Since
then, the partnership firm was converted into a proprietorship
concern which shifted its office and business to Patna.
Thereafter there was no Rohtas Carriers in existence at
Mohania.
27. In addition to this, prosecution also exhibited a
letter (Exhibit 5) written by Ramji Prasad Jaiswal to the Branch
Manager of Central Bank of India, Fraser Road, Patna. As per
this letter, Ramji Prasad Jaiswal had taken out his entire
shares of partnership from Rohtas Carriers and thereafter he
had no connection with Rohtas Carriers at all. This letter
signed by Ramji Prasad Jaiswal disclosed that Ramji Prasad
Jaiswal had left Rohtas Carriers on 28.11.1979.
28. After conclusion of the prosecution evidence,
statements of the accused persons including the appellants
were recorded under Section 313 CrPC. Insofar the present
appeal is concerned, all the three appellants were asked four
identical questions without putting them to notice the specific
material brought on record by the prosecution witnesses
22
against them. The four identical questions put to appellant No.
1 were as under:
1. Have you heard the statements given by the
witnesses?
2. It has come in the evidence that 14
consignment notes/transport receipts Nos.
616, 617, 140 to 148, 1101, 1102, 625, 635
and 1104 were prepared in the names of M/s
Bansal Stores, Mohania and Vishnuji
Bhandar, Mohania during the period August to
December, 1982?
3. It has also come in the evidence that you in
collusion with accused Ajay Kumar Srivastava,
Shiv Narain Bansal, Chaithakh Singh, Bal
Mukund Jaiswal and Ashok Kumar Jaiswal in
furtherance of a particular conspiracy
transacted with the State Bank of India on the
basis of forged and fabricated documents and
23
after depositing Rs. 71,456.00, you cheated
the bank of Rs. 12,57,810.00?
4. Do you have to say anything in your defence?
29. Section 313 CrPC deals with the power of the court
to examine the accused. Section 313 CrPC is as follows:
313. Power to examine the accused .—(1) In every
inquiry or trial, for the purpose of enabling the accused
personally to explain any circumstances appearing in the
evidence against him, the court—
(a) may at any stage, without previously warning the
accused put such questions to him as the court considers
necessary;
(b) shall, after the witnesses for the prosecution have
been examined and before he is called on for his defence,
question him generally on the case:
Provided that in a summons-case, where the court
has dispensed with the personal attendance of the
accused, it may also dispense with his examination
under clause (b).
(2) No oath shall be administered to the accused
when he is examined under sub-section (1).
(3) The accused shall not render himself liable to
punishment by refusing to answer such questions, or by
giving false answers to them.
24
(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.
30. In Shivaji Sahabrao Bobade Vs. State of
1
Maharashtra , this Court was examining Section 342 of the old
Code of Criminal Procedure, 1898 which is pari materia to
Section 313 Cr.P.C. and explained the rationale behind such
provision in the following words:
16.................. It is trite law, nevertheless fundamental,
that the prisoner's attention should be drawn to every
inculpatory material so as to enable him to explain it.
This is the basic fairness of a criminal trial and failures
in this area may gravely imperil the validity of the trial
itself, if consequential miscarriage of justice has flowed.
However, where such an omission has occurred it does
not ipso facto vitiate the proceedings and prejudice
1
(1973) 2 SCC 793
25
occasioned by such defect must be established by the
accused. In the event of evidentiary material not being
put to the accused, the court must ordinarily eschew
such material from consideration. It is also open to the
appellate court to call upon the counsel for the accused
to show what explanation the accused has as regards the
circumstances established against him but not put to
him and if the accused is unable to offer the appellate
court any plausible or reasonable explanation of such
circumstances, the Court may assume that no acceptable
answer exists and that even if the accused had been
questioned at the proper time in the trial court he would
not have been able to furnish any good ground to get out
of the circumstances on which the trial court had relied
for its conviction. In such a case, the court proceeds on
the footing that though a grave irregularity has occurred
as regards compliance with Section 342, CrPC, the
omission has not been shown to have caused prejudice
to the accused...
31. Section 313 CrPC came up for consideration in
2
Dharnidhar Vs. State of Uttar Pradesh where this Court
outlined the proper methodology to be adopted by the court
while recording statement of an accused under Section 313
CrPC. This Court held thus:
2
(2010) 7 SCC 759
26
29. The proper methodology to be adopted by the court
while recording the statement of the accused under
Section 313 CrPC is to invite the attention of the accused
to the circumstances and substantial evidence in relation
to the offence, for which he has been charged and invite
his explanation. In other words, it provides an
opportunity to an accused to state before the court as to
what is the truth and what is his defence, in accordance
with law. It was for the accused to avail that opportunity
and if he fails to do so then it is for the court to examine
the case of the prosecution on its evidence with reference
to the statement made by the accused under section 313
CrPC.
32. This Court discussed the purpose of recording the
statement of an accused under Section 313 CrPC in Raj Kumar
3
Singh alias Raju alias Batya Vs. State of Rajasthan and held
as under:
30. In a criminal trial, the purpose of examining the
accused person under Section 313 CrPC is to meet the
requirement of the principles of natural jus-tice i.e. audi
alteram partem. This means that the accused may be
asked to furnish some explanation as regards the
incriminating circumstances associated with him, and
the court must take note of such explanation. In a case
3
(2013) 5 SCC 722
27
of circumstantial evidence, the same is essential to decide
whether or not the chain of circumstances is complete.
No matter how weak the evidence of the prosecution may
be, it is the duty of the court to examine the accused, and
to seek his explanation as regards the incriminating
material that has surfaced against him. The
circumstances which are not put to the accused in his
examination under Section 313 CrPC, cannot be used
against him and have to be excluded from consideration.
33. Again, in Raj Kumar alias Suman Vs. State (NCT of
4
Delhi) , this Court summarized the law as regards Section 313
CrPC in the following manner:
22. The law consistently laid down by this Court
can be summarised as under:
22.1. It is the duty of the trial court to put each
material circumstance appearing in the evidence against
the accused specifically, distinctively and separately. The
material circumstance means the circumstance or the
material on the basis of which the prosecution is seeking
his conviction.
22.2. The object of examination of the accused
under Section 313 is to enable the accused to explain any
circumstance appearing against him in the evidence.
4
(2023) 17 SCC 95
28
22.3. The Court must ordinarily eschew material
circumstances not put to the accused from consideration
while dealing with the case of the particular accused.
22.4. The failure to put material circumstances to
the accused amounts to a serious irregularity. It will
vitiate the trial if it is shown to have prejudiced the
accused.
22.5. If any irregularity in putting the material
circumstance to the accused does not result in failure of
justice, it becomes a curable defect. However, while
deciding whether the defect can be cured, one of the
considerations will be the passage of time from the date
of the incident.
22.6. In case such irregularity is curable, even the
appellate court can question the accused on the material
circumstance which is not put to him.
22.7. In a given case, the case can be remanded to
the trial court from the stage of recording the
supplementary statement of the accused concerned
under Section 313 CrPC.
22.8. While deciding the question whether
prejudice has been caused to the accused because of the
omission, the delay in raising the contention is only one
of the several factors to be considered.
29
34. In a recent decision, this Court in Ashok Vs. State of
5
Uttar Pradesh held as under:
23. In the present case, there is no doubt that
material circumstances appearing in evidence against
the appellant have not been put to him. The version of
the main prosecution witnesses PWs 1 and 2 was not put
to him. The stage of the accused leading defence evidence
arises only after his statement is recorded under Section
313 CrPC. Unless all material circumstances appearing
against him in evidence are put to the accused, he cannot
decide whether he wants to lead any defence evidence.
24. In this case, even the date and place of the
crime allegedly committed by the appellant were not put
to the appellant. What was reportedly seen by PW-2 was
not put to the appellant in his examination. Therefore,
the appellant was prejudiced. Even assuming that failure
to put material to the appellant in his examination is an
irregularity, the question is whether it can be cured by
remanding the case to the trial court.
35. After surveying the law on this print, let us revert
back to the facts of the present case. The manner in which the
trial court had recorded the statements of the appellants under
Section 313 CrPC was not at all in tune with the requirements
5
(2025) 2 SCC 381
30
of the said provision as explained by this Court as discussed
supra.
36. Four questions generally were put to the appellants,
that too, in a most mechanical manner. These questions did
not reflect the specific prosecution evidence which came on
record qua the appellants. As all the incriminating evidence
were not put to the notice of the appellants, therefore, there
was a clear breach of Section 313 CrPC as well as the principle
of audi alteram partem . Certainly, this caused serious
prejudice to the appellants to put forth their case. Ultimately,
such evidence were relied upon by the court to convict the
appellants.
37. Therefore, there is no doubt that such omission,
which is a serious irregularity, has completely vitiated the trial.
Even if we take a more sanguine approach by taking the view
that such omission did not result in the failure of justice, it is
still a material defect albeit curable. In Raj Kumar (supra), this
Court highlighted that while deciding whether such defect can
31
be cured or not, one of the considerations will be the passage
of time from the date of the incident.
38. As we have already noted, the period during which
the offence was allegedly committed was from September, 1982
to December, 1982. Trial was concluded on 29.05.2006.
Nineteen years have gone by since then. At this distant point
of time, instead of aiding the cause of justice, it will lead to
miscarriage of justice if the case qua the two appellants are
remanded to the trial court to restart the trial from the stage
of recording the statements of the accused persons under
Section 313 CrPC. In such circumstances, we are of the
considered opinion that it is neither possible nor feasible to
order such remand. Consequently, appellants are entitled to
the benefit of doubt because of such omission in the recording
of their statements under Section 313 Cr.P.C. since the trial
court had relied on the evidence adverse to the appellants
while convicting them.
39. Therefore, their conviction and sentence has
become untenable. Resultantly, we set aside the judgment and
32
order of the trial court dated 29.05.2006 and that of the High
Court dated 24.11.2011.
40. Since the appellants are on bail, their bail bonds are
hereby cancelled.
41. Criminal appeal is accordingly allowed.
……………………………J.
[ABHAY S. OKA]
……………………………J.
[UJJAL BHUYAN]
NEW DELHI;
MAY 20, 2025.
33