PRITISH NANDY v. STATE OF ORISSA — 1989 DIGILAW 140 (ORI)

LINGARAJA RATH, J. ( 1 ) THIS petition u/s. 482, Cr. P. C. raises an important question regarding the true meaning of the proviso to S. 313 (1), Cr. P. C. as to whether while the Court exercises power thereunder to dispense with examination of the accused under S. 313 (1) (b), it is obligatory on its part to question the counsel representing the accused instead. The petitioners who are respectively the Editor and the Special Correspondent of the Illustrated Weekly of India are facing trial under S. 292, I. P. C. for having published an article therein captioned "shocking : The Strange Escapades Of J. B. Patnaik. " In the trial Court the personal attendance of the petitioners was dispensed with under S. 205, Cr. P. C. on their application. After the close of evidence of the prosecution, the case was posted to 15-2-89 for accused statement and defence evidence on which date an application was filed on behalf of the petitioners requesting adjournment. The application was allowed with the case posted to 3-3-89. On the date fixed, again a petition was filed on behalf of the petitioners stating that the petitioner No. 1 was busy in an important foreign assignment and the petitioner No. 2 was out of station in connection with some professional work and hence both of them were unable to appear in Court for the purpose of recording of their statement. The further ground for seeking adjournment was the illness of the principal counsel of the petitioners due to high fever. On the same day, an application was also filed by the Special Public Prosecutor to direct the petitioners to appear personally in Court for recording on their statements under S. 313, Cr. P. C. Such application was obviously thought necessary because of the earlier order of the Court dispensing with the personal attendance of the petitioners. Considering the applications, the learned trial Court was of the view that the defence had already availed two adjournments covering one month for recording of the accused statement and defence evidence and that since it appeared from their petition that they remained busy in their professional works, no further adjournment was to be granted. He dispensed with examination of the accused persons in exercise of the powers under the proviso to S. 313 (1), Cr. P. C. as they had been represented under S. 205, Cr. He dispensed with examination of the accused persons in exercise of the powers under the proviso to S. 313 (1), Cr. P. C. as they had been represented under S. 205, Cr. P. C. from the very beginning. A consequential order was also passed, since the date had been fixed for examination of the accused as well as for defence evidence and the petitioners were not ready with their evidence, directing the case to be put up on 7-3-89 for arguments. It is such order of the Court which is under challenge in this petition. ( 2 ) SOME facts which are also worthwhile noticing are that subsequent to the impugned order, a petition was filed on 7-3-89 in the trial Court on behalf of the petitioners seeking adjournment of the case on the ground of their senior counsel being seriously ill and also to challenge the order dt. 3-3-89 before this Court. The petition was rejected and the learned S. D. J. M. proceeded to hear the arguments in part and posted the matter to 15-3-89 for further arguments on which date a petition was again filed by the petitioners to recall the orders passed on 3-3-89 and 7-3-89 and to allow four weeks time to the petitioners to submit their list of defence witnesses. The Special Public Prosecutor agreed for grant of time to the petitioners to examine the defence witnesses, if any, in consideration of which fact the Court adjourned the case to 11-4-89 allowing the petitioners to examine defence witnesses on that date. The present Criminal Misc. Case was filed on 7-3-89 and on 6-4-89 orders were passed admitting the case and directing it to be put up for hearing on 11-4-89 as also granting interim stay of further proceedings in the trial Court. ( 3 ) MR. P. Palit, the learned counsel for the petitioners, has urged the sole question that the power of the Court to dispense with examination of the accused under the proviso to S. 313 (1), Cr. P. C. does not extend to do away with the examination of the accused absolutely, but in the context only means to allow the representing counsel of the accused to answer the questions on their behalf and such procedure having not been followed, the order of 3-3-89 has become vitiated. P. C. does not extend to do away with the examination of the accused absolutely, but in the context only means to allow the representing counsel of the accused to answer the questions on their behalf and such procedure having not been followed, the order of 3-3-89 has become vitiated. It is his submission that the order should be quashed allowing the representing counsel of the petitioners to make statements on their behalf and that they should be given opportunity to adduce defence evidence. Mr. I. Ray, the learned Addl. Govt. Advocate appearing for the State, has, on the contrary, contended that under the provisions of S. 313, Cr. P. C. , as was also the law under its predecessor Code, there is no scope for examination of the representing counsel in lieu of the accused and that even in the present petition, the petitioners have not made any such prayer. It is his further submission that the trial of this case has had a chequered career with the petitioners adopting various steps to prolong the trial and that the present move is one more such step. To scuttle any further move to delay the trial, he has come forward with the suggestion that he would have no objection if the petitioners are willing to make their statements under S. 313, Cr. P. C. either themselves or through their counsel, but that a firm date should be fixed for the purpose so that the trial of the case is not held up merely for their statement to be recorded. He has also indicated no objection for examination of defence witnesses which fact he submitted also before the trial Court which passed orders permitting the petitioners to adduce evidence. ( 4 ) TO such suggestions of the learned Addl. Govt. Advocate. Mr. Palit has made it clear that the statements of the accused may be recorded through their advocates but that the petitioners would not appear personally for recording of their statements. In view of such stand adopted by the petitioners, it is necessary to examine whether under the provisions of the proviso, it is possible to examine the representing counsel of the petitioners on their behalf so as to make statements under S. 313 (1) (b ). ( 5 ) TO appreciate the contentions raised, S. 313 (1), Cr. P. C. may be usefully extracted :-"313. ( 5 ) TO appreciate the contentions raised, S. 313 (1), Cr. P. C. may be usefully extracted :-"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 question 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 Cl. (b ). "the Section is a recast of S. 342 of the old Code except with the change that the word "personally" has been added in the main Sub-Section after the words "enabling the accused" and a new proviso has also been added. Before the implications of the change brought in by the new Code are considered, the law as laid down by the Supreme Court interpreting S. 342, Cr. P. C. (old) as to whether examination of the representing counsel on behalf of the accused was permissible is vitally important to be noticed. In AIR 1969 SC 381 , Bibhuti Bhusan Das Gupta v. State of West Bengal, the Supreme Court in no uncertain terms strongly deprecated the practice and held that the scheme of S. 342, Cr. P. C. read with S. 364 of the old Code reveals that it is only the accused who can be personally examined to answer any circumstances or materials appearing against him in the trial. It was held that the privilege of making a statement under S. 342 is personal to the accused, the clear intention being that only he and nobody else can be examined under it which is clear from a reference to the wordings of S. 364, Cr. It was held that the privilege of making a statement under S. 342 is personal to the accused, the clear intention being that only he and nobody else can be examined under it which is clear from a reference to the wordings of S. 364, Cr. P. C. (S. 281 (2) to S. 281 (5) of the new Code) which require that the whole of the examination including every question put to the accused and every answer given by him must be recorded in full and interpreted to him in the language he understands and he is at liberty to explain or add to his answer and when the whole is made conformable to what he declares is the truth, the record has, to be signed by him and the Magistrate. Their Lordships quoted with approval a passage from AIR 1923 Cal 470, Promotha Nath v. Emperor stating :". . . . . . . . . . the intention of the statute is that at a certain stage in the case, the Court itself shall put aside all counsel, all pleaders, all witnesses, all representatives, and shall call upon an individual accused with the authority or the Court's own voice, to take advantage of the opportunity which then arises to State in his own way anything which he may be desirous of stating. . . . . . . . . what is necessary is that the accused shall be brought face to face solemnly with an opportunity given to him to make a statement from his place in the dock in order that the Court may have the advantage of hearing his defence if he is willing to make one with his own lips. "interpreting the provisions of Ss. 205 and 540a of the old Code which correspond to S. 317 of the present one, the Court held that though those Sections did not expressly mention that a pleader cannot be examined under S. 342, yet it does not lead to the inference that the pleader can be also examined. , and on the contrary from the scheme, purpose and language of S. 342 the conclusion is reached that the examination of the accused under the Section is to be of his own and not of his pleader. , and on the contrary from the scheme, purpose and language of S. 342 the conclusion is reached that the examination of the accused under the Section is to be of his own and not of his pleader. ( 6 ) THE divergence of judicial authorities on the question was thus set at rest by the Supreme Court holding that the purpose of examination of an accused is an opportunity to him to explain personally to the Court the facts and materials appearing against him in the case as also enabling the Court to hear from the own lips of the accused his explanation to the case. Such view of the Supreme Court was given legislative recognition in the new Code by addition of the word "personally" in Sub-Sec. (1) of S. 313 after the words "enabling the accused". The substantive provision of S. 313 has thus a mandatory requirement that the examination of the accused must be a personal one and cannot be delegated to a counsel representing him. Section 313 consists of two parts; one an enabling power for the Court that it may question, as it thinks necessary, the accused without previously warning him at any stage of the trial and the other, a compulsory direction to the Court to question the accused generally on the case after the prosecution evidence is closed and before the accused is called upon to enter his defence. If the consideration of the proviso is kept apart, the language of Cl. (b) of Sub-Sec. (1) would show that inasmuch as a mandate has been cast upon the Court to, examine the accused compulsorily, it would have been compulsory for the Court to secure the attendance of the accused, if he did not otherwise co-operate. The proviso is an exception to such compulsory provision of Cl. (b) and applies only when the case is a summons-case and the Court had dispensed with the personal attendance of the accused. If the case is a warrant-case, the Court would have no power to dispense with the examination under Cl. (b) and for the purpose the attendance of the accused has to be secured. The personal attendance of the accused may be dispensed with either under S. 205 or S. 317, Cr. P. C. as the case may be. If the case is a warrant-case, the Court would have no power to dispense with the examination under Cl. (b) and for the purpose the attendance of the accused has to be secured. The personal attendance of the accused may be dispensed with either under S. 205 or S. 317, Cr. P. C. as the case may be. The proviso thus releases the Court, at its discretion, from the mandatory obligation of examination of the accused under S. 313 (1) (b) and hence from the obligation of securing his attendance for the purpose. Of course such discretion has to be exercised by the Court judiciously and it is not that in all summons cases where the attendance of the accused has been dispensed with his examination should also be dispensed with. In the ultimate, statement made by the accused under S. 313, Cr. P. C. is grounded upon the principles of natural justice by furnishing the views of the accused to the Court for its consideration by affording opportunity to him to explain the circumstances appearing against him. It is well settled that an inadequate examination or omission under S. 313, Cr. P. C. would not ipso facto render the trial void unless prejudice is shown to have been caused to the accused. Thus though the proviso is in the nature of an exception to the requirement of examination of the accused and hence prejudice for the non-examination would not ipso facto nullify the trial, yet in varying circumstances the extent of the prejudice caused may indicate an improper exercise of jurisdiction but the exercise of discretion must remain exclusively with the Court. It appears that the purpose behind insertion of the proviso was to enable the Court to deal with trial of less serious offences expeditiously without it being put to a checkmate and its progress arrested by resort to dilatory methods or where the dispensation of the accused statement is viewed by the Court to be more in the interest of justice. Some of the considerations which might weigh with the Court in exercising the powers under the proviso are those indicated in S. 317, Cr. P. C. such as where it is felt that the personal attendance of the accused is not necessary in the interest of justice or that he persistently disturbs the proceedings in Court. Some of the considerations which might weigh with the Court in exercising the powers under the proviso are those indicated in S. 317, Cr. P. C. such as where it is felt that the personal attendance of the accused is not necessary in the interest of justice or that he persistently disturbs the proceedings in Court. It may be even for reason of the trial being held up indefinitely due to the unavoidable absence of the accused and the power may be also exercised at the instance of the accused himself in which event of course the question of prejudice would not arise as was decided by the Supreme Court in AIR 1988 SC 2163 , Chandu Lal Chandraker v. Puran Mal. ( 7 ) VIEWED from such background, it does not appear to be in consonance with the scheme of the Section that while the examination of the accused is dispensed with, the statement of the representing counsel is to be recorded instead. The primary requirement of Sub-Sec. (1) being that the accused must be examined personally and such examination is dispensed with under the proviso, an alternative provision cannot be read into it by requiring the Court to comply with the provisions of Sub-Sec. (1) (b) of the Section by examination of the counsel. If the Parliament in its wisdom provided that in certain specific category of cases the statement of the accused may be dispensed with, it is not for the Courts to step in and substitute a supplementary provision that when the Court exercises the discretion vested in it by the statute, it must also follow an alternative procedure not otherwise provided in the statute. Besides, when the very purpose of examination of the accused is a personal dialogue between the Court and him as has been explained by the Supreme Court, it is needless to say that such purpose is not achieved if a lawyer is examined in place of the accused. Examination of a counsel in lieu of the accused was not conceived either in the old Code nor is recognised in the present Code also. Such practice which had developed earlier was held not to be in consonance with law by the decision. , AIR 1969 SC 381 , and hence there is no reason to conclude that merely because the statement of the accused is dispensed with under S. 313, Cr. Such practice which had developed earlier was held not to be in consonance with law by the decision. , AIR 1969 SC 381 , and hence there is no reason to conclude that merely because the statement of the accused is dispensed with under S. 313, Cr. P. C. , the statement of a lawyer must be substituted therefor. If the Parliament intended that while dispensing with the examination of the accused under the proviso, the lawyer representing him should be examined instead on his behalf, nothing prevented it to enact as such. The word "dispensing'' in the context, would mean to declare that which is dispensed with as unnecessary or to do without it. If such meaning is not adopted, the addition of the word "personally" in Sub-Sec. (1) would be rendered meaningless. It must be remembered that under the proviso what is dispensed with is the examination of the accused under S. 313 (1) (b) and not his examination personally. The statement of a counsel can also hardly be otherwise a substitute for that of an accused. It is doubtful as to whether the statement of a counsel pleading guilty on behalf of the accused would bind him. Section 253 (2), Cr. P. C. specifically authorises a pleader to make an admission of guilt on behalf of the accused in petty cases where he has been specifically so authorised by the accused. Without such express authorisation an admission of guilt may not bind the accused. ( 8 ) THE submission that denial to the accused to make a statement before the Court is violative of natural justice and may amount in the case of his conviction to condemn him unheard is also without force. In the first place, the provisions of the proviso may be invoked by the accused himself. Even in the second place, where the power is exercised by the Court suo motu and no alternative provision has been made in the Code for a substituted statement, the law itself would not be rendered void merely for that reason since the principles of natural justice though sacred and sacrosanct, yet must ordinarily yield to its legislative curtailment. Besides, the grievance is also without foundation. Even when a statement of the accused is dispensed with, yet a written statement at his instance is permissible to be filed which has to be taken into consideration by the Court. Besides, the grievance is also without foundation. Even when a statement of the accused is dispensed with, yet a written statement at his instance is permissible to be filed which has to be taken into consideration by the Court. In AIR 1966 SC 97 , Harbhajan Singh v. State of Punjab, the position was recognised that in many cases accused persons would prefer to file a written statement and that indeed under S. 256 (2) of the old Code (S. 243 (1) of the new Code) relating to trial of warrant-cases it is provided that if an accused puts in a written statement, the Magistrate shall file it with the record. Such written statement which may be filed by the accused would in effect be the outcome of the legal advice which the Supreme Court in the very same decision held should not be viewed with distrust and indeed if the statement of a counsel on behalf of the accused would have been permissible, there is no reason as to why a written statement of the accused drawn up through the services of the lawyer would be any less acceptable. ( 9 ) CERTAIN authorities cited by Mr. Palit may also be noticed. 1985 Cri LJ 154, Delhi Development Authority v. Amarjit Singh is a decision of the Delhi High Court where a contrary view appears to have been taken reaching the conclusion that the proviso to Sub-Sec. (1) of S. 313, Cr. P. C. is never meant to reduce Cl. (b) of S. 313 (1) to a nullity and to subvert the scheme of the trial and hence where the examination of the accused is dispensed with under the proviso, his counsel should be examined generally in the case. The view has also been adopted in 1988 Cri LJ 51, S. R. Jhunjhunwalla v. B. N. Poddar which is a decision of the Calcutta High Court. ( 10 ) IN view of the discussions made earlier, I however do not find myself persuaded, with great respect to the learned Judges, to concur with the views expressed in the decisions. On the contrary, a decision of the Rajasthan High Court in 1988 Cri LJ 511, Sachchida Nand v. Pooran Mal, brought to my notice by Mr. Palit, has taken the view that a lawyer's statement under S. 313 (1) (b) is not contemplated. On the contrary, a decision of the Rajasthan High Court in 1988 Cri LJ 511, Sachchida Nand v. Pooran Mal, brought to my notice by Mr. Palit, has taken the view that a lawyer's statement under S. 313 (1) (b) is not contemplated. ( 11 ) SINCE I reach the conclusion that there is no scope of examination of the representing counsel of the petitioners on their behalf under the proviso, it must be held that the contention raised by Mr. Palit fails and since the learned S. D. J. M. has already granted opportunity to the petitioners to adduce defence evidence, which is also the only prayer made in this petition, the submission of the learned Additional Govt. Advocate that this case has no merit has to be upheld. Since the Court had ordered dispensing with the examination of the accused only because they are professional people busy in their work and the adjournment had covered more than a month, I would have been persuaded to hold that the discretion of the learned Magistrate was not properly exercised since the petitioners being busy in their professional work would not normally have been a ground to reject their prayer for adjournment unless the Court felt that the move was only to delay the trial. But however in view of the categorical statement made by Mr. Palit that the petitioners do not intend to appear before the Court to make their statements, I do not feel of there being any scope to interfere with the order passed. The petitioners however way put in a written statement, if they so like. ( 12 ) IN the result, the petition is rejected as being without merit. Petition dismissed. .