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High Court of Jammu and Kashmir at Srinagar Bench recently in a revision petition held that in a case triable as a summons case where the accused decides to contest the accusation, recording of statement under Section 242 of the Code of Criminal Procedure pales into insignificance.

A Single Bench of the High Court comprising Justice Sanjeev Kumar held,

“It is true that recording of statement under Section 242 of the Code is an important aspect of trial in summons cases and it provides an opportunity to the trial Court to terminate the proceedings at its inception, if accused admits that he has committed the offence of which he is accused….

….Omission to record the statement of accused under Section 242 of the Code is a mere irregularity curable under Section 537 of the Code, unless such irregularity has occasioned failure of justice.”

In the present case, when the trial Court took up the complaint against the petitioner under Section 138 of the Negotiable Instruments Act, 1881 (NIA Act) for final disposal after both sides had adduced their evidence, it was found that at the time of commencing the trial statement of the accused under Section 242 of the Code of Criminal Procedure (the Code) had not been recorded.

Counsel for the petitioner submitted that failure to record statement of the accused under Section 242 of the Code is a defect, which is fatal to the complaint and the trial court has no option but to dismiss the complaint.

However, the trial court rejected petitioner’s contention and held that failure to record statement of the accused under Section 242 of the Code was a curable defect. The Revisional court also concurred with the view taken by the trial Court.

Thereafter, the petitioner assailed the aforementioned orders and filed a revision petition before the High Court.

Upholding the Trail Court’s decision, the High court single bench concluded that accepting the contention of the petitioner that omission of the Court to record his statement under Section 242 of the Code has vitiated the trial would be tantamount to punishing the complainant for no fault of his.

Therefore, the court dismissed the petition in sans of merit.

Issues before the bench

In this revision petition, the Single Bench dealt majorly with following issue-

‘Whether non-recording of statement of accused under Section 242 of the Code is fatal to the case, even if the accused seeking benefit of such omission has not suffered any prejudice on such account?’

Stating that the present case is such where omission to record the statement of the petitioner under Section 242 of the Code has not caused any prejudice to the petitioner, the court held,

“Distinction between an illegality and irregularity is one of degree rather than of kind. In the absence of any prejudice to the petitioner or demonstrated failure of justice, the omission to record statement of the accused under Section 242 of the Code cannot be held to be an illegality fatal to the validity of the trial.”

Furthermore, the court put emphasis upon the object of the Section 242 of the code stating that ‘it is to provide an opportunity to the accused to admit the charge and get the trial concluded at the inception.’

What is Section 242 of the Criminal Procedure Code?

Dealing with the present issues, the Single Bench observed that under Section 143 of the NIA Act, complaint under Section 138 may be tried summarily. In accordance with the same the court stated the relevant provisions as hereunder-

‘In a case triable as a summons case, the moment an accused appears or is brought before the Magistrate, particulars of the offence of which he is accused are required to be stated to him and he would be asked if he has any cause to show cause as to why he should not be convicted, however, it shall not be necessary to frame formal charge. This is so provided under Section 242 of the Code.’

Case Title: Abdul Majeed Dar Vs. Javed Ahmad Bhat