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2004 DIGILAW 459 (ORI)

SRI ADITYA KUMAR MISRA v. STATE OF ORISSA

2004-10-12

R.N.BISWAL

body2004
JUDGMENT : R.N. Biswal, J. - The Petitioners and opp. Party No. 2 are accused in 2 (c) C.C. Case No. 230 of 1996 of the Court of J.M.F.C., Bhubaneswar for the offence u/s 23 and 24 of the Contract Labour (Regulation and Abolition) Act, 1970 (hereinafter referred as Act). After closure of evidence from the side of prosecution the case was adjourned to 22.8.2003 for recording the statement of the accused persons u/s 313 Code of Criminal Procedure On that date the Petitioners and opp. party No. 2 filed a petition u/s 317 (1) Code of Criminal Procedure to be represented through their advocate and another petition under proviso to Section 313 (1 )(b) Code of Criminal Procedure to dispense with their examination u/s 313 (1) (b) Code of Criminal Procedure The J.M.F.C. rejected both the petitions holding that there are incriminating materials against the accused persons, which ought to be put to them. As such, NBWs of arrest were issued against them fixing 22.1 0.2003 for their production. On 20.9.2003 the representing lawyer of the Petitioners and opp. Party No. 2 filed a petition u/s 317 (1) Code of Criminal Procedure to dispense with their personal attendance and another petition to dispense with their examination u/s 313 (1) (b). In view of the previous order both the petitions were rejected. 2. Being dissatisfied with these orders the Petitioners and opp. party and No. 2 filed Criminal Revision No. 19/47 of 2003 before the First Additional Sessions Judge, Bhubaneswar. The learned Additional Sessions Judge set aside the order of issuance of N.B.Ws of arrest against the Petitioners therein, but did not interfere with the order with regard to rejection of the petition for dispensing with the examination of the Petitioners u/s 313 (1) (b) Code of Criminal Procedure 3. In the present Criminal Misc. Case the Petitioners seek this Court to invoke the power u/s 482 Code of Criminal Procedure and to quash the order of the J.M.F.C. wherein he rejected the petition for dispensing with their examinations u/s 313 (1) (b) Code of Criminal Procedure and the order of Add!. Sessions Judge, Bhubaneswar who confirmed it. 4. The maximum punishment prescribed for both Sections 23 and 24 of the Act is simple imprisonment for three months. So, the case is a summons case. Sessions Judge, Bhubaneswar who confirmed it. 4. The maximum punishment prescribed for both Sections 23 and 24 of the Act is simple imprisonment for three months. So, the case is a summons case. Learned Counsel appearing for the Petitioners submitted that as per the proviso to Sub-section (1) (b) of Section 313 Code of Criminal Procedure Magistrate has power to dispense with the examination of the accused persons u/s 313 (1) (b) Code of Criminal Procedure In support of his submission he relied on the decisions in the case of S. Nihal Singh and Ors. v. Arjan Das; 1985 CRI. L.J. 467 and Delhi Development Authority Vs. Amarjit Singh, where it has been held that, in summons cases where the personal attendance of the accused persons has been dispensed with, their examination u/s 313 (1 )(b) Code of Criminal Procedure also can be dispensed with and the circumstances appearing in the evidence against them can be put to the lawyer representing them who can answer the same. It is not a must in each and every case. It depends upon the discretion of the Court, but such discretion should be used judiciously. Petition u/s 313 (1) (b) of Code of Criminal Procedure should not be rejected if it places the accused persons in disadvantageous position. As mentioned earlier, the J.M.F.C. Bhubaneswar did not allow to dispense with the examination u/s 313 (1) (b) Code of Criminal Procedure of the Petitioners, as there were some incriminating evidence against them. Only because some evidence against the accused Petitioners were adduced, that alone is not sufficient to reject their petition. Learned Counsel for the Petitioners submit that the Petitioners are ready and willing to give undertaking that they will not be prejudiced if the accusations brought against them is allowed to be answered by their representing lawyer. He further submitted that petition No. 1 is the Executive Director, C.N.S. Department, Airports Authority of India, New Delhi and Petitioner No. 2 is an Assistant General Manager, Eng. (Electrical), Airports Authority of India, N.S.C.B. Int., Airport, Dum, Dum, Kolkata and they are busy officials. Since the accused-petitioners live far away from Bhubaneswar and they are busy officials, when their was no objection to allow their petition u/s 317 (1) Code of Criminal Procedure their prayer for dispensing with their examination u/s 313 (1) (b) should not have been rejected. 5. Since the accused-petitioners live far away from Bhubaneswar and they are busy officials, when their was no objection to allow their petition u/s 317 (1) Code of Criminal Procedure their prayer for dispensing with their examination u/s 313 (1) (b) should not have been rejected. 5. Under such circumstances, the order of the J.M.F.C. rejecting the petition u/s 317 Code of Criminal Procedure of the accused-petitioners and the petition to dispense with their examinations u/s 313 (1) (b) Code of Criminal Procedure and the order of the Additional Sessions Judge dated 8.6.2004 wherein he confirmed the order of the J.M,F.C. are set aside. If the Petitioners file a petition for their representation through their representing counsel, another petition for dispensing with their examination u/s 313 (1) (b). Code of Criminal Procedure and an undertaking that they would not be prejudiced if the circumstances appearing in the evidence against them are answered by their counsel, the J.M.F.C., Bhubaneswar will pass appropriate order in the light of discussion as made above. 6. The Criminal Misc. Case is disposed of accordingly.