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2005 DIGILAW 240 (AP)

Inuganri Venkata Indira Devi v. State

2005-03-15

V.V.S.RAO

body2005
V. V. S. RAO, J. ( 1 ) THE petitioner is the sole Code of Criminal Procedure, 1973 (Cr. PC ). accused in C. C. No. 332 of 2001. The charge Be that as it is, after completion of the against her is that she committed offences evidence, when the matter was coming up under Sections 27 and 64 of the Indian for examination of accused under Section stamp ACT, 1899, 1989. She is a resident of 313 of Cr. PC. , she filed a petition being chennai. Before Trial Court, from the Cri. M. P. No. 116 of 2005 before the learned beginning she was represented by a lawyer Additional Judicial Magistrate of First Class, for the purpose of Sections 205 and 251 of Bobbili under proviso to Section 313 (1) of cr. PC praying to dispense with her personal attendance and permit her advocate to answer questions under Section 313 of cr. PC. The said petition was returned by the learned Magistrate on 24-1-2005 on the ground that N. B. W. against the petitioner is pending. ( 2 ) IN this petition filed under section 482 of Cr. PC. , the petitioner made two prayers, one is to quash N. B. W. issued to the petitioner on 24-1-2005 and the other is to permit the duly instructed petitioner s counsel to answer questions under section 313 of Cr. PC. The case throws up a short but significant question of considerable importance. This Court therefore heard the learned Counsel for the petitioner, learned additional Public Prosecutor and Sri M. N. Narasimha Reddy, Senior Counsel practising in this Court and former Additional Public prosecutor, who assisted the Court when the request was made. This Court deeply appreciated the assistance given by him in the matter. ( 3 ) SECTION 313 of Cr. PC textually mandates the examination of the accused by putting such questions as are deemed by the Trial Court. The only exception carved out by the Parliament is with regard to a summons case and/or with regard to a case where personal attendance of the accused is dispensed with, under clause (b) of sub-section (1) of Section 313 of Cr. PC. The examination of the accused under section 313 of Cr. PC is of considerable importance in the criminal trial. As per subsection (4) of Section 313 of Cr. PC. The examination of the accused under section 313 of Cr. PC is of considerable importance in the criminal trial. As per subsection (4) of Section 313 of Cr. PC, the answers given by the accused in the examination under Section 313 of Cr. PC shall have to be taken into consideration with regard to involvement of the accused in the crime or otherwise. Except in the two exceptional cases mentioned in proviso to sub-section (1) of Section 313 of Cr. PC, is it always mandatory to examine the accused personally under Section 313 of Cr. PC? A two Judge Bench of the Supreme Court in usha K. Pillai v. Raj K. Srinivas, (1993) 3 scc 208 = AIR 1993 SC 2090 , took a view that it is mandatory to examine the accused personally under Section 313 of Cr. PC and there is no exception. Subsequently, doubting the said view, the matter was considered by a three Judge Bench of the Supreme Court in Basavaraj R. Paul v. State of Karnaiaka, 2000 (2) ALD (Crl.) 843 (SC) = (2000) 8 scc 740 . ( 4 ) WHEN a Criminal Court completes prosecution evidence (other than in summons cases) is it indispensably mandatory that the accused himself should be questioned? cannot the Court allow the advocate to answer such questions on behalf of the accused at least in some exigent conditions? these were two questions considered by the apex Court in Basavaraj R. Patil s case (supra ). After noticing various statutory provisions in Cr. PC and referring to earlier case law, the Supreme Court came to the conclusion that the examination under section 313 of Cr. PC is intended to benefit the accused as well as the Court to reach final conclusion. !f such examination of the accused benefits the accused, without any exception, the Criminal Court has to examine the accused in every enquiry or trial at any stage and put such questions as deemed necessary. However, this rule as observed by the Supreme Court, in certain special exigencies may be relaxed, if such non-examination of accused does not violate the legislative intent under Section 313 of cr. PC. It is apposite to excerpt Paragraphs 24 to 26 Basavaraj R. Patil s case (supra) as under: we think that a pragmatic and humanistic approach is warranted in regard to such special exigencies. PC. It is apposite to excerpt Paragraphs 24 to 26 Basavaraj R. Patil s case (supra) as under: we think that a pragmatic and humanistic approach is warranted in regard to such special exigencies. The word "shall" in clause (b) to Section 313 (1) of the Code is to be interpreted as obligatory on the court and it should be complied with when it is tor the benefit of the accused. But if it works to his great prejudice and disadvantage the Court should, in appropriate cases, e. g. , if the accused satisfied the Court that he is unable to reach the venue of the Court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relieve him or such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the code in a substantial manner. How could this be achieved? if the accused (who is already exempted from personally appearing in the Court) makes an application to the Court praying that he may be allowed to answer the questions without making his physical presence in Court on account of justifying exigency the Court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters: (A) A narration of facts to satisfy the Court of his real difficulties to be physically present in Court for giving such answers. (B) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning. (C) An undertaking that he would not raise any grievance on that score at any stage of the case. If the Court is satisfied of the genuineness of the statements made by the accused in the said application and affidavit it is open to the Court to supply the questionnaire to his advocate (containing the questions which the court might put to him under Section 313 of the Code) and fix the time within which the same has to be returned duly answered by the accused together with a properly authenticated affidavit that those answers were given by the accused himself. He should affix his signature on all the sheets of the answered questionnaire. He should affix his signature on all the sheets of the answered questionnaire. However, if he does not wish to give any answer to any of the questions he is free to indicate that fact at the appropriate place in the questionnaire (as a matter of precaution the Court may keep photocopy or carbon copy of the questionnaire before it is supplied to the accused for an answer ). If the accused fails to return the questionnaire duly answered as aforesaid within the time or extended time granted by the Court, he shall forfeit his right to seek personal exemption from Court during such questioning. ( 5 ) THE decision of the Supreme Court in Basavaraj R. Patil s case was not brought to the notice of the learned Additional Judicial first Class Magistrate, Bobbili. The fact that an N. B. W. is pending does not mean that the Magistrate should return the application filed by the petitioner. ( 6 ) THEREFORE, without expressing any opinion on the merits of this case, this court deems it proper to pass the following order: (I) The N. B. W. dated 24-1-2005 in C. C. No. 332 of 2001 issued to the petitioner is hereby recalled; (ii} The learned Magistrate shall immediately take up Crl. M. P. No. 116 of 2005, as and when represented by the petitioner and pass appropriate orders adhering to the principles laid down by the Supreme Court in Basavaraj R. Patil s case (supra); and (iii) The learned Magistrate shall pass appropriate orders within a period of one week from the date of receipt of a copy of this order. ( 7 ) THE criminal petition, subject to the above observations, is allowed.