Section 232 Cr.P.C wanted or unwanted
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Published by Advocate John S. Ralph
The article Unwanted Section 232 Cr.P.C published in 2012 (4) KHC J 56 seems totally misconceived. The author has opined that Section 232 is unwanted. The unfortunate opinion was based on the assumptions that at the stage of 232 the court proceeds further for defence evidence after concluding that there is evidence for conviction.
The observations in Lane 6 to the effect that “ In case the court finds there is evidence for conviction, the court permits the accused to adduce defence evidence “ is misconceived. Section 232 never says so. It only says that “…there is no evidence that the accused committed the offence, …shall acquit” The evidence at this stage cannot be equated with PROOF. The stage only permits the court to acquit. Not to convict !! This clearly shows that a conviction is possible only after giving the accused a chance to adduce defence evidence. Take the example of a case in which all the witnesses have turned hostile, the court acquits U/s 232. Or in a case where the evidence adduced is only against some of the accused and there is no evidence against a particular accused. Then also that accused can be acquitted U/s 232 and the trial proceeds against other accused. Such absence of evidence is being dealt with u/s 232 Cr.P.C.
But if there is evidence ( prima facie or otherwise ) the court hears both the sides. And in case the court feels that further evidence from the defence is essential for substantiating their defence, then the court calls upon the defence to enter upon defence U/s 233. The underlying principle of this procedure is that ,it is on the stage of 232 the court opens its mind and tells the defence that the court needs more evidence to consider the matter before it. Lets see an illustration. The plea of the accused in a murder case is insanity. The defence is that they have evidence of medical men and of relatives and friends to the effect that the accused was insane. The accused also says it while under questioning him U/s 313 Cr.P.C All these apart, there are indications from the evidence adduced by the prosecution through witnesses and the post arrest records to show trhat the accused was having some mental abnormality. Then at the stage of 232 the court tells the defence to adduce its evidence in this aspect. The words used is “…he may have in support thereof..” which also means that He MAY NOT HAVE any evidence. So if the defence has evidence it can adduce, if not or in case if it cannot, due to passage of time or due to non co operation of the witnesses for various reasons, the court proceeds to hear the defence arguments. ( Medical records may get lost due to passage of time. Witnesses may not come forward, fearing adverse public opinion if the offence is a shocking one to the society like rape and murder of a child etc.)
Para 3 of the article reads “… Once the court finds there is evidence, no amount of defence evidence saves the accused “ Again the author was confused with evidence and proof. In Section 3 Stephenson has cautiously included the words “ Proved”………….after considering the MATTERS before it “ Not the “EVIDENCE” before it. The matter includes Arguments, defence evidence, probabilities, possibilities etc of the matters before it adduced through the witnesses and addressed by the counsels. So it can only be after adducing defence evidence. Suppose the prosecution witnesses have unshakably testified before the court that they saw the accused stabbing the victim. And the defence through equally trustworthy evidence tells the court that he was else where ( alibi) Then it is the duty of the court to consider the matters before it, supported by the arguments, to arrive at a conclusion to deicide the issue. So proceeding to the next stage to 233 does not mean that the court found that the accused has committed the crime. The word “EVIDENCE” used anywhere in the statues does not substitute proof. Evidence also can be Unworthy, unacceptable ,false, fallacious etc. Proof is the truth ( of course, according to the presiding judge )
To conclude it is at the stage of 232, the defence is asked to enter on his defence. But in reality, through age old practice, no court is doing this and only the proceedings sheets says “ heard u/s 232 Cr.P.C, accused is not entitled to be acquitted at this stage, he is called upon to enter of defence evidence… “ Hence it has become a usual routine only. But the underlying principles behind it , as a right of the accused cannot be termed as unwanted. The courts have, in a large number of cases have stated that compliance with Section 232 Cr.P.C is mandatory.