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2006 DIGILAW 430 (PAT)

Qeyamuddin @ Quamuddin Mina v. State Of Bihar

2006-05-08

INDU PRABHA SINGH

body2006
Judgment Indu Prabha Singh, J. 1. This is an application u/s. 482 of the Code of Criminal Procedure, 1973 (in short the Code). It is directed against the order dated 22.6.2005 passed by the learned Fast Track Court No. 2, Siwan in S.T.No. 53 of 1996 whereby and whereunder the petition filed on behalf of the petitioner for his exemption from personal appearance for recording his statement u/s. 313 of the Code was rejected. 2. It has been submitted that the petitioner who is one of the accused in this case is presently residing in Saudi Arabia where he is working as a labourer. He made his best efforts to come to India to appear in person before the learned trial court for making his statement u/s. 313 of the Code but inspite of his best efforts the Company where he was working has kept his pass-port and refused to hand over the pass port to him and to allow him to return back India unless the contracted period of his service is completed. As such the petitioner instructed his counsel to make the statement on his behalf and answer such questions which might have been put to the petitioner in terms of sec. 313 of the Code. However, by the impugned order this prayer was rejected. Hence this application. 3. I have heard the parties. 4. It has been submitted on behalf of the opposite party that under the provision of sec. 313 of the Code except for a summons case the personal appearance of the accused is necessary in course of his examination. In this connection my attention has been drawn to the case of Bibhuti Bhusan Das Gupta and Anr. V/s. State of West Bengal - according to which it was held that the accused has to undergo personal examination under the provisions of sec. 313 of the Code. Also my attention has been drawn to the case of Usha K. Pillai V/s. Raj K. Srinivas and Ors. - according to which also the examination of the lawyer would not be sufficient compliance to the mandate of the provision of sec. 313 of the Code. 5. On behalf of the petitioner it has been submitted that his personal aparance has been exempted in terms of sec. - according to which also the examination of the lawyer would not be sufficient compliance to the mandate of the provision of sec. 313 of the Code. 5. On behalf of the petitioner it has been submitted that his personal aparance has been exempted in terms of sec. 205 of the Code and, therefore, as per the law he may be permitted to be examined through his lawyer with respect to his statement to be recorded u/s. 313 of the Code. So far the cases of Bibhuti Bhusan Das Gupta (supra) and Usha K. Pillai (supra) are concerned it has been submitted that in the case of Basavaraj R. Patil and Ors. V/s. State of Karnataka and Ors. - a three Judge Bench of the Hon ble Supreme Court has decided otherwise by a majority view that u/s. 313 of the Code the requirement that accused be personally present in the court for his examination can be dispensed with when presenting himself in court would cause hardship to the accused. Paragraph 25 of the judgment runs as follows: 25. 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 It would further held that 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 the Advocate (containing the questions which the Court might put to him u/s. 313 of the Code). The answer so given should be signed by the accused and return back within the time fixed by the Court. The answer so given should be signed by the accused and return back within the time fixed by the Court. It was further held that above course is adopted in exceptional exigency it would not violate the legislative intent envisaged in Sec. 313 of the Code. 6 Before coming to this decision, the Hon ble Court had also taken into consideration the ratio of the decisions in the cases of Bibhuti Bhushan Das Gupta (supra) and Usha K. Pillai (supra). Those two decisions have been explained and distinguished in the case of Basavaraj R. Patil(supra) by a three Judges Bench of the Hon ble Supreme Court in which the peculiar facts and circumstances of this case were also taken into consideration before coming to the decisions noted above. 7. On behalf of the petitioner it has been submitted that he is a labourer working in Saudi Arabia and his pass-port has already been retained by his employer who is un-willing to return back him till the period of his contract is over. Under this circumstances I feel that the procedure as envisaged in the judgment of Basavaraj R. Patil (supra) as given above may be followed for proper compliance of the law as contained in sec. 313 of the Code. 8. This application, is, accordingly, disposed of.