Holding

The trial judge properly applied Section 278, the High Court erred in expunging the Section 313 examination and ordering re‑examination, and therefore the appeal is allowed.

Summary

The accused were tried for murder under IPC sections 302/34. The prosecution examined 34 witnesses, including the investigating officer (PW‑34), and the accused were examined under Section 313 of the CrPC. The State sought re‑examination of the first accused under Section 313 and filed an unsigned correction slip to amend PW‑34's testimony; the trial court corrected only typographical errors and refused substantive changes, rejecting the re‑examination request. The State appealed to the High Court, which held that the trial judge had not followed Section 278 properly, expunged the Section 313 examination of all accused, and ordered a possible transfer of the case. The Supreme Court held that the trial judge correctly applied Section 278, that the High Court erred in nullifying the Section 313 examination and in granting liberty to re‑examine PW‑34, and that no transfer was necessary. Consequently, the appeal was allowed and the High Court order reversed.

Issues considered

The correct procedure under Section 278 of the CrPC for correcting recorded evidence, especially when a correction slip is unsigned and not served.
Whether the trial court must re‑examine an accused under Section 313 of the CrPC upon the prosecution's request and the extent of the court's discretion.
Whether the High Court could expunge the Section 313 examination of all accused and direct re‑examination of a witness.
Whether a transfer of the case to another bench is warranted after the trial judge's retirement.

Legislation cited

Code of Criminal Procedure, 1973s. 273, s. 275, s. 276, s. 278, s. 313

Subjects

Section 278Section 313correction of recorded evidencere‑examination of accusedtrial court discretionhigh court interferencecase transfer

Judgment

MIR MOHD: OMAR & ORS: A
v.
STATE OF WEST BENGAL

AUGUST 8, 1989

[K. JAGANNATHA SHETTY AND A.M. AHMADI, JJ.] B

Code of Criminal Procedure, 1973: Section 278--Recorded
evidence-Correction-Object of-Not intended to permit a witness to
resile from his statement-Unsigned correction slips not properly filed-
'\.,_€ffect of. . · . .. ·· ·.· .·· · . · · ·

Section 313-Examination of accused-Object of-Trial Court- c
Whether should consult .or hea1 counsel for the parties-Prosecution
can invite attention of Court if any incriminating circumstances left out.

In the Sessions.trial of the appeUants-accused under section 302/
34, l.P.C., the prosecution examined 34 witnesses including the Investi- D
gation Officer (PW-34). The Trial Court examined the accused under
section 313 of the Code of Criminal Procedure, 1973 and recorded their
statements. thereafter the Public Prosecutor ftled an application for
re-examination of the first appellant under section 313 which was
--~· rejected by the Trial Court.
E
An unsigned correction slip, without any application and service
on tlie defence counsel, was also ftled seeking correction in the state-
ment of PW-34. The Trial Court rectified the typographical errors, but
refused to make other corrections which would have changed the sub-
stantive part of the evidence.
F
.The State preferred a Criminal Revision in the High Court which
stated that the. Trial Court bas not followed proper procedure regard-
ing correction or recorded evidence. The High Court expunged the
examination under section 313 of all the accused reserving liberty to the
prosecution to file application for re-examination of PW-34 and
accepted the demand for transfer of the case. Hence these appeals. G

Allowing the appeals, and reversing the order of the High Cqurt,

HELD: 1. The object of section 278 is two fold: firstly to ensure
that the evidence of the witness as recorded is accurate and secondly to
give the witness concerned an opportunity to point out mistakes. If the H

735
736 SUPREME COURT REPORTS 119891 3 S.C.R.

A correction •1tu lat by the wltmm Is - wblch the judge considered
necessary be will make ii al once as required by sub-seclioa (l), but If
the correction is such that the judge does not consider necesury, sub-
section (2) requires that a memorandum of the objection be made, and
the Judge add his remarks, if an)'., thereto. l741E]

B I.I In the instant case, lbe trial judge corrected all the typo-
graphical errors which be considered necesury but refused lo carry out
r·
the substantive part or his deposition. The S«lioo is not intended lo
permit a witness lo resile from his statement in the name of correction.
The trial judge was justified in refusing lo elfed the change which be J
thought was intended lo change the earlier version. He did not make -,A a
C memorandum as the correction slip was llDSigned and was not properly
filed. Since the correction slip as weU as the remarks of the trial judge ...+
have become a part of the record, nothing more need ' be done as the
provisons of section 278 are substanliaUy complied with. I74 IF-GI

2. The object of section 3I3 is that the accused may be given an
D opportunity of explaining each and every circumstance appearing
against him. The trial judge need not consult or hear the public pro-
secutor or the counsel for the accused as lo the nature of the circumst-
ances or the type of questions to be put lo the accused. It is his duty lo ·~ ~.
examine the accused as per law. It is, however, open lo the prosecution ;
lo invite the attention of the Court lo any incriminating circumstance
E left out and not put lo the accused. l742C-D]

2. I In the instant case, after the prosecution bas cw...d the evi-
dence the accused were examined under section 3I3 of the Code. The
prosecution did not at any stage move the trial judge for recalling PW
34 for further examination. Therefore t~\¥as no justification for the
}'
F High Court for giving liberty to the p~ution for re:..xaminalion of ·
PW-34 and expunging the examination of,' all the accused under section
313. l742A-74IHJ

3. In the instant case, as the trial judge bas since retired the
question of transfer of the case to another Bench of the City Sessions
Court does not arise. [742E]
G
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No~. 467-468 of 1989.

From the Judgment and Order dated 27.4.1989 of the Calcutta
H High Court in Cr!. Revision No. 641and720 of 1989.
:f- ,, .•; ·~ -

ij

M.M. OMAR''· STATE OF.WEST BENGAL [SHETTY, J.] 737

A.D. Giri, D.P. Ghosh, S.B. Pathak and B.S. Chauhan for the A
Appellants. ' "··'

N.N. Gooptu, Attorney General, P.P. Rao, D.K. Sinha, J.R.
Das, N .A. Choudhary, R.B. Mahato, Raj K. Gupta, Siba Pada Baner·
jee, Subhrangshu Banerjee and P.C. Kapur for the Respondents.
B
The Judgment of the Court was delivered by ·

K, JAGANNATHA SHETTY, J. The special leave is granted
\., . and the ap~eal stands disposed of by this order.

The appellants-accused are facing trial for an offence under secs. C
302-34 IPC and alternatively under secs. 364-34 IPC before the City
Sessions Court, 13th Bench, Calcutta in Sessions Trial No. 1 of
November, 1987 (Session Case No. 5/87). The prosecution examined
in all 34 witnesses. The last witness examined is the investigating
officer (PW 34). His examination went on for a number of days and
came to an end on March 16, 1989. On the next day that is. on March D
17, 1989, the court examined the accused under sec. 313 of the Cri·
minal Procedure Code and recorded their statements.

On March 21, 1989, the public prosecutor filed an application
proposing some more questions to be put. to the first appellant by way
of re-examination under sec. 313 of the Code. On the same day, the E
trial court by a considered order rejected that application. The rele·
vant portion of that order runs as under:

"I think the Ld. P.P. can argue all these points as the
time of advancing arguments in this case and this case and.
the accused need not be re-examined on this point under F
sec. 313 Cr.P.C. The Ld. P.P. has also submitted that in
question No. 6 and question No. 7 the word "these witnes·
ses" should be replaced by the name of the witnesses. I
think the names of the witnesses have already been put to
the accused persons in the previous questions. So in the
question No. 6 and question No. 7 the name of the witnes- G
ses need not be mentioned again. Then it has been pointed
out that the question No. 4 in place of the words "you all'.',
the question should be written as 'Khurshed, Bhulu, Noor
Alam and tenea under your order.' I think it is implied. If
other aceused persons did anything at the order of one
particular accused it is implied that all the accused persons H
738 SUPREME COURT REPORTS [1989] 3 S.C.R.
.i
committed the mischief. So on this point also the accused
A need not be re-examined again. Lastly, it has been pointed
out that in question No. 2 in place of P.W. 12 Abdullah
Daweed the"words "P. W. 7 Md. Mein" should be written.
On perusal of the evidence on record I find P. W. 12 Abdul-
lah Dawood is also a witness of the occurrence and so the
B question need not be corrected. Discussing the above
circumstances,.the petition filed by the prosecution this day
for re-examination of the accused persons under sec. 313
Cr.P .C. for further re-examination is rejected.

On March 30, 1989 the public prosecutor applied for adjourn- )
C ment of the case on the grouQd that he would like to move the High
Court against the aforesaid order dated March 21, 1988. The case was
accordingly adjourned to April 18, 1989. It is said that in between
these days some c,mection slip was filed in the Court seeking 25 cor-
rections in the statement of PW 34. The said slip was not accompanied
by any application nor was it served on counsel for the accused. The
D trial court, however, in the .interest of justice rectified the typo-
graphical errors in the statement of PW 34 but refused to make other
corrections which would have changed the substantive part of his
evidence.

The State moved the High Court with Criminal Revision No. 641
E of 1989 praying: (i) Corrections be made in the evidence of PW 34 as
per slip supplied to the Trial Court; (ii) Additional statement of the
first appellant under section 313 Cr.P.C. be recorded in respect of
questions proposed by the prosecution; and (iii) Transferring the case
to some other Bench of the City Sessions Court as the trial judge has
acted with bias. I

F
j
There was another revision application filed by Smt. Anushila
Devi who claims herself to be a sister of the deceased Mahesh Kumar
Agarwal and as a party interested in the case. She also sought transfer
of the case from the 13th Bench to some other Bench in the City
Sessions Court on the apprehension that there would not be a fair trial
in the case.
G
The High Court on examination of the records found that the ,,.\j;
correction slip filed before the trial court was not part of the records in
the case. The High Court called for an explanation from learned trial
judge who wrote to the High Court as follows:
H
"The correction slip as referred to has not been pro-
:;~- ~*~

"Yi
·,, ;
. ~u!
.f'•

M.M. OMAR v. STATE OF WEST BENGAL (SHETTY, J.) 739

perly filed. It is not signed by anybody. The case number or A
the court number has not bee11 mentioned in .it. Nor any
petition has been filed by the prosecution along with such
concerned correction slip. Even the copy of the same has
not been served upon the defence advocates. Still then as
many as 16 typographical mistakes have already been cor-
rected out of 25 mistakes as per correction slip. Other mis- B
takes are not typographical mistakes and in the name of
correction the evidence already recorded cannot be
changed. So other mistakes have not been corrected."
~
He has also stated in the explanation:

"Unsigned correction slip in 3 loose sheet could not be sent c
earlier as the case recorded was forwarded in a hurry and
the said correction slip is now enclosed herewith."

r' The High Court, however, was not satisfied with the explanation
and expressed the view that the trial judge has not followed the proper D
procedure envisaged in sec. 278 of the Code since he has 'a closed
mind'. The Court also found fault with the procedure adopted by the
,->-(_ _prosecution, but liberty was reserved to the latter to file an application
•• · for re-examination of PW 34. ·

As to the claim for re-examination of the accu!;ed under sec. 313 E
of the Code, the High Court said as follows:

"We have heard at length Mr. Durga Pada Dutta, the
learned Advocate appearing on behalf of the accused oppo-
site parties who frankly conceded that point Nos. I, 2, 3, 4
& 5 could be allowed. But objections were raised with f
regard to point Nos. 6 & 7 when it was suggested by the
prosecution that a question should have been put regarding
seizure of hair on 5. 11.86 and of forwarding the same to the
F. S.I. for comparison with the scalp hair of deceased
Mahesh Kumar Agarwal and the report of the F .S.L. It was
suggested in point No. 7 that a question should be put G
regarding presence of accused Omar near the crossing of
B.B. Ganguly Street and C.R. Avenue at about 1.15 a.m.
on 5. 11.1986 when the 1.0.'s testimony was not very clear
on the point." ..... "We would have allowed ordinarily
the application filed on 21.3. 1989 with regard to point
Nos. I to 5 and would have left the question on point Nos. 6 H
740 SUPREME COURT REPORTS [1989] 3 S.C.R.

A & 7 to the trial judge on the basis of concession made b.Y
Mr. Dutt, the learned Advocate for the accused opposite
parties and also on the basis of our own opinion on this
aspect of the case but then since we direct the trial court to
hold the re-examination of PW 34 on a proper application
being filed by the prosecution in this regard. We would
B expunge not only the examina\ion under sec. 313 Cr.P.C.
which is already on record in respect of accused Mir Mohd.
Omar but also in respect of the other accused persons and
direct the court below to proceed afresh in the matter after ,
the recording of evidence including the re-examination o.f )
PW 34 is complete and we would direct the court belo-'1
further to hear out the submissions of the prosecution as
c well as defence regarding framing of proper questions
under sec. 313 Cr.P .C."

The High Court also accepted the demand for transfer of the case \
and the matter was ldt to the Chief Judge, City Sessions Court either,,
D to try the case by himself or to transfer to some other Bench regard ·
being had to the congestion of the different Benches.

In this appeal, the accused have challenged the legality of the
order of the High Court. )---'.

E We have heard Mr. A.O. Giri, learned counsel for the appellants
and learned Advocate General for the State of West Bengal, besides
Mr. P. P. Rao, learned senior counsel for the private party. We have
also perused the material on record. We find it difficult to support the
impugned order. It seems to us that the High Court has needlessly
interfered with the discretion exercised by the trial court with regard to {
F correction slip as well as on re-examination of the accused under sec.
313 of the Code. We do not find any infirmity in the procedure fol-
lowed by the trialJudge and if there is any, it is only in the order of the
High Court. The High Court was uncharitable to the trial judge when
it observed that he has 'a closed mind'. It may be noted that the
correction slip was not filed when the day to day evidence of PW 34 was
G recorded and read over to him. Nor it was filed on the last day of
recording his evidence. It does not bear any signature or the date. The .. l" ',
trial judge, however, thought fit to correct typographical errors in the ,,,
statement of PW 34 which he would have corrected even otherwise.
He refused to make any correction or alter the substantive part of the
evidence. Indeed, he was right in not tinkering with the ·substantive
H part.of the evidence on the basis of an unsigned correction slip.

J
.~ ,,. '"'',;;<•
L

M.M. OMAR '" STATE OF WEST BENGAL [SHETTY, l.] 741

In the Sessions trial the court has limited jurisdiction with regard A
to correction of the recorded evidence of "any witness. Section 273
provides:

"Procedure in regard to such evidence when com-
pleted
B
( !) As the evidence of such witness taken under sec.
275 or sec. 276 is completed it shall be read over to him in
, the presence of the accused, if'in attendance, or of his
pleader, if he appears by pleader, and shall, if necessary,
be corrected.

(2) If the witness denies the correctness of any part
c
of the evidence when the same is read ·over to him, the
magistrate or presiding judge may, instead of correcting
the evidence make a memorandum thereon of the objec-
tion made to it by the witness, and shall add such remarks
as he thinks necessary." D
'.
The object of sec. 278 is two fold: firstly'>to ensure that the
evid.!'nce of the witness as recorded is accurate and Secondly to give the ·
witness concerned an opportunity to point out mistakes, if any. If the
correction suggested by the witness is one which the judge., considers
necessary he will make it at once as required by sub-sec. (1) but if the E
correction is such that the judge does not consider necessary, sub-sec.
(2) requires that a memorandum of the objection be made and the
Judge add his remarks, if any, thereto. In the present case, the learned
trial judge corrected all the typographical errors which he considered
necessary but refused to carry out the substantive part of his deposi-
tion. The section is not intended to permit a witness to resile from his F
statement in the name of correction. The learned trial judge was
justified in refusing to effect the change which he thought was in-
tended to change the earlier version. He did not make a memorandum
as the correction slip was unsigned and was not properly filed. Now,
since the correction slip as well as the remarks of the learned trial
judge have become a part of the record, nothing more need be done as G
the provisions of sec. 278 are substantially complied with.

We equally see no justification for the High Court for giving
liberty to the prosecution to file an application for re-examination of
PW 34. In fact it will be seen from the operative portion of the
impugned order the High Court proceeds on the assumption that PW ff
742 SUPREME COURT REPORTS I 1989) 3 S.C.R.

A 34 would be recalled for further examination. Here again it may be
noted that the prosecution has closed the evidence. The accused have
been ex.amined under sec. 313 of the Code. The prosecution did not at
any stage move the trial judge for recalling PW 34 for further examina-
tion. In these circumstances, the liberty reserved to the prosecution to
recall PW 34 for re-examination is undoubtedly uncalled for.
B
There is yet another grave error committed by the High Court. It
has expunged the entire examination under sec. 313 of the Code of all
the accused. We fail to understand the need for this extraordinary
step. It is unfortunate· that the High Court should make that order. I
Assuming it was on account of its permission to re-examine PW 34, -f"'
C even in that case it would be sufficient to further examine the accused
with reference to the additional circumstances,' if any, appearing
against the accused-on such re-examination. The object of sec. 313 was
that the accused may be given an opportunity of explaining each and
every circumstance appearing against him. The trial judge need not
consult or hear the public prosecutor or the counsel for the accused as
D to the nature of the circumstances or the type of questions to be put to
the accused. It is his duty to examine the accused as per law. It is,
however, open to the prosecution to invite the attention of the Court if
any incriminating circumstance is left out and not put to the accused.
We reserve liberty to the prosecution in this regard.

E The question of transfer of the case to another Bench of the City
Sessions Court also does not arise now. We are told that the trial judge
has since retired and another judge has taken over his place. He shall,
therefore, take up this case expeditiously and proceed preferably day
to day, as earlier ordered by the High Court.

F In the result, the appeal is allowed and the order of the High .f
Court is ~eversed. This order shall be communicated to the trial court
within two days by courier service. The parties should appear before
the trial court on August 14, 1989 to receive further orders.

T.N.A. Appeal allowed.