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2005 DIGILAW 597 (CAL)

Sukhendu Dutta v. STATE OF WEST BENGAL

2005-09-02

PRAVENDU NARAYAN SINHA

body2005
Judgment :- (1.) This revisional application under Section 482 of the Code of Criminal Procedure (hereinafter called the Code) has been filed by the petitioner assailing the order dated 18.7.05 passed by the Learned Chief Judicial Magistrate (in short CJM), South 24Parganas at Alipore in complaint Case No. C-1663 of 2002 thereby rejecting the prayer of the accused petitioner for examination under Section 313 of the Code through his lawyer and directing personal appearance of the accused for the purpose of examination under Section 313 of the Code. (2.) Learned Advocate for the petitioner submitted that the opposite party instituted the complaint case against this petitioner under Section 138 of the Negotiable Instruments Act. The accused was permitted to be represented under Section 205 of the Code. The said complaint case after crossing of the stage of examination of witnesses in the trial has now reached the stage of examination of accused under Section 313 of the Code. During the stage of 313 examination of the accused, the Learned Magistrate has directed personal appearance of the accused petitioner in Court for the purpose of examination under Section 313 of the Code. The said order of the Learned Magistrate directing personal appearance of the accused petitioner in Court for his examination under Section 313 of the Code is bad in law. The accused was permitted to be represented under Section 205 of the Code and the accused at the stage of examination under Section 313 of the Code should also be permitted to be represented under Section 205 of the Code and the examination under Section 313 should be done by the Court through the lawyer representing the accused under Section 205 of the Code. He submitted that the Supreme Court in such a situation directed that when an accused was permitted to be represented under Section 205 of the Code, it is not necessary to appear before the trial Court for" recording statement as contemplated under Section 313 of the Code. In support of his contention he cited the decision in Shri Chandu Lal Chandraker v. Shri Puran Mal and Anr. reported in JT (1988)1 SC 14 : 1988 C Cr LR (SC) 267. (3.) Learned Advocate for the opposite party submitted that the petitioner made an attempt for transfer of the case which was rejected even in the Supreme Court. In support of his contention he cited the decision in Shri Chandu Lal Chandraker v. Shri Puran Mal and Anr. reported in JT (1988)1 SC 14 : 1988 C Cr LR (SC) 267. (3.) Learned Advocate for the opposite party submitted that the petitioner made an attempt for transfer of the case which was rejected even in the Supreme Court. Now the accused has filed the instant revisional application only to delay the conclusion of trial. Representation in the trial through a lawyer under Section 205 of the Code cannot be equated with representation of accused at the time of his examination under Section 313 of the Code through his lawyer. In examination under Section 313 of the Code the accused has to give answer to the questions to be put to him by the Court and a lawyer cannot be asked to give the answers to the questions of Court. The decision cited by the learned Advocate for the petitioner is per inquiring as a larger Bench of the Supreme Court in Bibhuti Bhusan Das Gupta v. State of West Bengal reported in AIR 1969 SC 381 observed that in examination under Section 342 of the Code, a pleader cannot represent the accused for the purpose of Section 342 of the Code. Before their Lordships in Shri Chandu Lal Chandraker v. Shri Puran Mal (supra) this larger Bench decision of three Judges was not referred to. The decision in Shri Chandu Lal Chandraker (supra) is of two Judges Bench and naturally the Court should give reliance on the decision of a larger Bench. (4.) After considering the submissions of the learned Advocates for the parties and the materials on record, I am of opinion that the order passed by the Learned Chief Judicial Magistrate cannot be regarded as illegal, improper and irregular. It is evident that on the basis of complaint lodged by the OP. No. 2 against the petitioners under Section 138 of the N.I. Act the petitioner No. 1 was permitted to be represented under Section 205 of the Code by order dated 9.1.03. The prayer of petitioner No. 1 for dispensing with personal appearance under Section 205 of the Code was allowed on the condition that the accused shall appear as and when directed. It was not an unconditional order under Section 205 of the Code. The prayer of petitioner No. 1 for dispensing with personal appearance under Section 205 of the Code was allowed on the condition that the accused shall appear as and when directed. It was not an unconditional order under Section 205 of the Code. The examination under Section 313 of the Code is a matter between Court and accused and the lawyer who is either conducting the case for accused or is representing the accused under Section 205 of the Code has no role in such examination. It is not a petty offence that the accused was permitted to be represented under Section 205 of the Code and that plea of the accused through his lawyer may be accepted. The examination under Section 313 becomes essential after closure of evidence of prosecution as the Court is expected to put questions to the accused from the incriminating materials and circumstances that transpired in evidence during trial. The accused is to give answer to the questions of Court relating to the incriminating materials and circumstances. The lawyer of the accused cannot be placed before the Court to give such answers. The Supreme Court in Bibhuti Bhusan Das Gupta (supra) clearly observed that, "It is from the scheme, purpose and language of Section 342 that we are driven to the conclusion that the examination under the section must be of the accused person and not his pleader." The principle of law pronounced by the Supreme Court in this decision in which three Lordships constituted the Bench made it clear that, even in a case where the Magistrate has dispensed with personal appearance of the accused, a pleader cannot represent the accused for the purpose of Section 342 of the Code except where the accused is a company or a juridical person and hence cannot be examined personally, in all other cases only the accused can be examined under Section 342 of the Code. (5.) The decision cited by the learned Advocate for the petitioner in Shri Chandu Lal Chandraker (supra) is a decision of two Honble Judges Bench and before the said Bench the decision of this three Judges Bench in Bibhuti Bhusan Das Gupta (supra) was not placed. Accordingly, the decision in Shri Chandu Lal Chandraker (supra) is clearly distinguishable and not applicable in the present case. Accordingly, the decision in Shri Chandu Lal Chandraker (supra) is clearly distinguishable and not applicable in the present case. The Section 342 of the old Code of 1898 is the Section 313 of the present Code. The aforesaid discussion makes it clear that in examination under Section 313 of the Code the accused is to appear before the Court and to give answers to the questions to be put to him by the Court and lawyer of the accused cannot be examined by the Court for the said purpose. The order passed by the Learned Chief Judicial Magistrate being correct, legal and proper requires no interference. (6.) The learned Advocate for the petitioner submitted that the accused apprehends manhandling during his journey from airport to Court. It is expected that no such thing would happen and the opposite party would not do anything which may hamper delay of disposal of the case. Learned Advocate for the O.P. No. 2 would definitely instruct his client to behave in such a manner that the petitioner does not feel any inconvenience in attending Court of the Learned Chief Judicial Magistrate at Alipore for the purpose of examination under Section 313 of the Code. (7.) The revisional application in view of the discussion made above fails and is dismissed. Learned Chief Judicial Magistrate, Alipore is directed to dispose of Case No. C-1663 of 2002 as early as possible without granting undue adjournment to the parties. (8.) Send a copy of this order to the Learned Chief Judicial Magistrate, Alipore for information and necessary action. (9.) Urgent xerox certified copy be given to the parties, if applied for, expeditiously. Later :- After the delivery of the judgment, the learned Advocate for the petitioner prays for stay of the operation of the order for four weeks. Considering the submission and also considering the nature of the allegation and legal principle, I find no ground to stay the order and as such prayer for stay is rejected.