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2010 DIGILAW 1086 (CAL)

M. L. Periwal v. STATE OF WEST BENGAL

2010-08-27

MRINAL KANTI SINHA

body2010
JUDGMENT Mrinal Kanti Sinha, J. 1. HEARD learned Advocates for the parties. This revisional application has been directed against the order passed by the learned Metropolitan Magistrate, 8th Court, Calcutta in Case No. C/ 631/03 under section 138/141 of the Negotiable Instruments Act on 25.2.2008 whereby the learned Metropolitan Magistrate has rejected the petition of the petitioners praying for allowing their learned Advocate D. Chanda to answer the questions under section 313 of the Code of Criminal Procedure, 1973, on their behalf. 2. IT is the case of the petitioners that sometime in 2003, the opposite party No. 2 moved a petition of complaint bearing No. C/631/03 against the present petitioners and others alleging thereby the commission of offence punishable under sections 138 read with section 141 of the Negotiable Instruments Act, in the Court of the learned Chief Metropolitan Magistrate, Calcutta. The allegations made in the said complaint in short are that in course of its commercial transactions towards discharge of liabilities arising out of regular course of business, the company of the petitioners, namely, National Plywood Industries Ltd. issued six post-dated cheques for Rs. 1,72,246/- which being presented for clearance were returned dishonoured followed by service of demand notice which was not complied with by the petitioners and thereby they embraced the penal mischief of the said enactment. Learned Chief Metropolitan Magistrate took cognizance of the offence alleged of and issued process in the said complaint case. The petitioners as accused persons entered appearance and were enlarged on bail. Then the petitioners as accused persons filed an application praying themselves to be represented by their learned Advocate under section 205 of the Code of Criminal Procedure, which was allowed by the learned Metropolitan Magistrate and they were permitted to be represented by their learned Counsel. Thereafter learned Metropolitan Magistrate examined the petitioners-accused persons under section 251 of the Code of Criminal Procedure through their learned Counsel representing them and trial was going on. Thereafter, date was fixed on 12.12.2007 for examination of the petitioners/accused persons under section 313 of the Code of Criminal Procedure. But by order dated 25.2.2008 the learned Trial Court rejected the application of the petitioners/accused persons and directed their personal appearance for examination under section 313 of the Code of Criminal Procedure. 3. Thereafter, date was fixed on 12.12.2007 for examination of the petitioners/accused persons under section 313 of the Code of Criminal Procedure. But by order dated 25.2.2008 the learned Trial Court rejected the application of the petitioners/accused persons and directed their personal appearance for examination under section 313 of the Code of Criminal Procedure. 3. BEING aggrieved by and dissatisfied with the aforesaid order of the learned Metropolitan Magistrate, 8th Court, Calcutta, the petitioners have filed this revisional application under section 397/401 read with section 482 of the Code of Criminal Procedure, 1973. 4. THE opposite party/State of West Bengal and the opposite party No. 2 are contesting, but neither of the opposite parties has filed any affidavit in opposition. The point to be considered in this matter is whether the learned Metropolitan Magistrate was legal, correct and justified in passing the impugned order or not. 5. AT the time of hearing arguments it has been submitted by the learned Advocate for the petitioners that the petitioners as accused persons of the said case have already been allowed to be represented through their learned Advocate as per the provisions of section 205 of the Code of Criminal Procedure by the learned Metropolitan Magistrate and the trial of the case was being proceeded with through representation, but at the time of examination of the accused petitioners under section 313 of the Code of Criminal Procedure, the petitioners filed an application before the learned Trial Court for allowing them to be represented through their learned Advocate for their examination as the accused petitioner No. 2 was lying seriously ill and indisposed and was not in a position to attend the Court, and the accused petitioner Nos. 3, 4 and 5 were out of Calcutta due to urgent business and were absent in Court, and they filed a petition in that regard before the learned Metropolitan Magistrate, and their prayer for allowing them to be represented: through their learned Advocate D. Chanda to answer the questions under section 313 of the Code of Criminal Procedure on their behalf was rejected by the learned Metropolitan Magistrate, but when they were allowed to be represented through learned Advocate in the said case under section 205 of the Code of Criminal Procedure, then their examination under section 313 Code of Criminal Procedure also could have been done through learned Advocate D. Chanda, and there was no bar for their examination under section 313 of the Code of Criminal Procedure through learned Advocate and in support of his submission, learned Advocate for the petitioners has relied upon the decisions reported in 2008(2) C Cr.LR (SC) 646 in the case of Key a Mukherjee vs. Magma Leasing Ltd., and reported in 2008(3) E Cr.N 1147 (Calcutta) in the case of Ravindra Kumar and Anr. vs. State of West Bengal and Anr. 6. AT the time of hearing of arguments learned Advocate for the petitioners has also submitted that the said complaint case may be remanded back to the learned Metropolitan Magistrate for reconsideration of the prayer of the petitioners/accused persons for allowing them to be represented through their learned Advocate at the time of their examination under section 313 of the Code of Criminal Procedure also, as they have already been allowed to be represented through their learned Advocate under section 205 of the Code of Criminal Procedure, and it has already been provided by the proviso of section 313(1)(b) that in a summons case where the Court has dispensed with the personal attendance of the accused, there it may also dispense with his examination under clause (b) of section 313(1) of the Code of Criminal Procedure, 1973. Learned Advocate for the opposite party No. 2 has also contended at the time of hearing of arguments of the matter that as per the provisions of the section 313 of the Code of Criminal Procedure the examination of the accused persons should usually be made by the personal presence of the accused persons for the purpose of enabling them personally to explain any circumstances appearing in the evidence against them, but there is a proviso under section 313(1)(b) of the Code of Criminal Procedure, 1973, to the effect that in a summons case where the Court has dispensed with the personal attendance of the accused, there it may also dispense with his examination under clause (b) of section 313(1) of the Code of Criminal Procedure, 1973, and such dispensation by the Court is discretionary and not mandatory, and so, relying upon that provision necessary direction may be given to the learned Metropolitan Magistrate for re-consideration of the matter and he has no objection if that is done. 7. LEARNED Advocate for the Opposite Party No. 1/State of West Bengal has also submitted that he has no objection if the present matter is remanded back to the learned Metropolitan Magistrate, 8th Court, Calcutta for reconsideration of the prayer of the petitioners for their representation through their learned Counsel. 8. WHEN it appears as per the submission of the learned Advocate for the petitioners that the present petitioners themselves are no longer interested to proceed further with their revisional application and themselves have prayed through their learned Advocate for remanding, back the matter to the learned Metropolitan Magistrate, 8th Court, Calcutta, for reconsideration of their prayer for being represented through their learned Counsel for their examination under section 313 of the Code of Criminal Procedure, 1973, and as per the legal provision or proviso to section 313(1)(b) of the Code of Criminal Procedure, 1973, learned Magistrate concerned may dispense with the personal attendance of the accused petitioners in a summons case for their examination under section 313 of the Code of Criminal Procedure, 1973, and no objection to such remand of the matter to the learned Magistrate concerned for reconsideration of the prayer of the accused-petitioners for their representation through their learned Counsel has been raised by the present opposite parties, and the decisions relied upon by the learned Advocate for the petitioners reported in 2008(2) C Cr. LR (SC) 646 (Keya Mukherjee vs. Magma Leasing Ltd.) and 2008(3) E Cr.N. 1147 (Cal) (Ravindra Kumar and Anr. vs. State of West Bengal and Anr.) have fully supported the submission of the learned Advocate for the petitioners, then there is no reason to stand in the way or to disallow the prayer of the learned advocate for the petitioners for remand of the matter to the learned Metropolitan Magistrate concerned. Having regard to the submission of the learned Advocates for the parties, materials on record and other circumstances, learned Metropolitan Magistrate, 8th Court, Calcutta is directed to pass necessary order according to law in the event the petitioners, who are already enjoying exemption under section 205 of the Code of Criminal Procedure, 1973, make any application to the Court praying that they may be allowed to answer to the question to be put to them under section 313 of the Code of Criminal Procedure without making their physical appearance in the Court on justified exigency, in the light of the observation made by the Hon'ble Apex Court in the aforesaid decision. The petitioners are given liberty to approach the learned Metropolitan Magistrate concerned with such application within a period of two weeks from this date, if so advised. In the event no such application is filed by the petitioners within the aforesaid period, the Learned Metropolitan Magistrate concerned shall proceed against them according to law. The above noted point is decided accordingly. 9. IT is made clear that this Court has not gone into the merits of the case regarding examination of the petitioners through their learned Counsel under section 313(1)(b) of the Code of Criminal Procedure, 1973, and all the points are kept open and learned Metropolitan Magistrate concerned shall dispose of the matter according to law independently as early as possible. 10. THE C.R.R. No. 1570 of 2008 is thus disposed of. A copy of this order be sent to the learned Metropolitan Magistrate, 8th Court, Calcutta, for information and compliance.