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2001 DIGILAW 1160 (MAD)

R. Krishnamoorthy and others v. T. Ambrose

2001-10-01

C.NAGAPPAN

body2001
ORDER: The petitioners are accused Nos.1 to 3 in S.T.C. No.1 149 of 1995 on the file of Judicial Magistrate No.III, Coimbatore. 2. The respondent herein is the complainant in the case and according to him, on 19.5.1994 a news item was published in the petitioners’ newspaper ‘Dina Malar’, Coimbatore Edition, regarding outraging the modesty of a woman and the complainant had sustained legal injury. The complainant lodged a private complaint against the petitioners herein under Sec.500 read with Sec.109 of I.P.C. and it was taken on file as S.T.C. No.1 149 of 1995 by the Judicial Magistrate No.III, Coimbatore. The petitioners herein preferred a petition under Sec.205 of Crl.P.C. stating their inability to appear before the trial Court on all hearings in Crl.M.P.No.6268 of 1995 and the learned Judicial Magistrate allowed the said petition on 3.9.1996. Subsequently, at the time of questioning under Sec.313 of Crl.P.C., the petitioners/accused had filed a petition in Crl.M.P.No.696 of 1999 to permit their counsel to answer the questions on their behalf. The Judicial Magistrate dismissed the same on 23.7.1999 directing the petitioners herein to appear in the Court to answer questions under Sec.313 of Crl.P.C. Aggrieved by that, the petitioners have filed this petition to set aside the same. 3. The learned counsel for the petitioners contends that the present case is a summons case and the petitioners have been already exempted from their personal attendance and the trial Court may dispense with their examination under Sec.313(1)(b) of Crl.P.C. and the impugned order has to be set aside. Per contra, the learned counsel appearing for the respondent/complainant contends that the prayer in the petition is not properly worded and the order of the trial Court has to be sustained. 4. Admittedly, the petitioners have been charged for an offence punishable under Sec.500 read with Sec.109 of I.P.C. The punishment provided for the offence under Sec.500 of I.P.C. is simple imprisonment for a term which may extend to two years or with fine or with both and in so far as the Sec.109, I.P.C. is concerned, the punishment provided is the punishment provided for the main offence. Hence, it is clear that the present case is a summons case. 5. Under Sec.313(1)(b) Proviso, it is 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). Hence, it is clear that the present case is a summons case. 5. Under Sec.313(1)(b) Proviso, it is 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). The above Proviso is very well applicable to the facts of the present case, since it is a summons case. The learned counsel appearing for the petitioners contended that the Apex Court has laid down that summons-cases are specifically exempted from the rigour of Sec.313(1)(b) of the Code and relied on the following decisions. In Usha K.Pillai v. Raj K.Srinivas, A.I.R. 1993 S.C. 2090, the Apex Court has laid down as follows: “4. The newly added proviso is in the nature of an exception to Clause (b) of Sub-sec.(1) of Sec.313 of the Code. It applies to a summons-case; it states in no uncertain terms that in a summons-case where the Court has dispensed with the personal attendance of the accused it would be open to the Court to dispense with the examination of the accused under Clause (b) of Sec.313(1) of the Code.....” In Basavaraj R.Patil and others v. State of Karnataka and others, A.I.R. 2000 S.C. 3214, the Apex Court has laid down as follows. “22. The one category of offences which is specifically exempted from the rigour of Sec.313(1)(b) of the Code is “summons cases”. It must be remembered that every case in which the offence triable is punishable with imprisonment for a term not exceeding two years is a “summons case”.....” 6. In the above two pronouncements, the Apex Court has clearly laid down that where the Court has dispensed with the personal attendance of the accused in a summons-case, it would be open to the Court to dispense with the examination of the accused under Clause (b) of Sec.313(1) of the Code. The petitioners in their petition have stated that they arc appearing through counsel under Sec.205 of Crl.P.C. and they plead to permit their counsel to answer the questioning under Sec.313 of Crl.P.C. on their behalf. As already seen, the Court has got power to dispense with the examination of the accused in a summons-case and virtually the petitioners seek for that relief only. The learned Magistrate had dispensed with the personal attendance of the accused and on their request their examination under Sec.313(1)(b) has to be dispensed with. As already seen, the Court has got power to dispense with the examination of the accused in a summons-case and virtually the petitioners seek for that relief only. The learned Magistrate had dispensed with the personal attendance of the accused and on their request their examination under Sec.313(1)(b) has to be dispensed with. Therefore, the order passed by the learned Magistrate cannot be sustained. 7. In the result, the petition is allowed and the order passed by the learned Judicial Magistrate No.III, Coimbatore is set aside and the learned Magistrate is directed to further proceed in the matter by dispensing with the examination of the petitioners unde-Sec.313(1)(b) of the Code.