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Madhya Pradesh High Court · body

2012 DIGILAW 755 (MP)

Surendra Sanghvi v. State of M. P.

2012-07-26

G.D.SAXENA

body2012
ORDER 1. Being aggrieved by an order dated 22nd March, 2012 passed in Criminal Case No.1303/2003 by the Judicial Magistrate First Class, Guna, the petitioner went in revisional Court by preferring a revision (Case No.89/2012), which came to be decided vide order impugned dated 9th May 2012, by the Second Additional Sessions Judge, Guna (M.P.) confirming the order assailed therein, i.e., 22nd March, 2012. That is why the petitioner again came up before this Court by taking recourse to section 482 of CrPC with a prayer to allow his petition in the interest of justice while directing the trial Court to take the statement of the accused in terms of section 313 of CrPC. 2. The brief facts, just for the decision of this petition are that in Complaint No.1303/2003 pending before the Judicial Magistrate First Class, Guna against the petitioner and one of the accused, namely, Sanjeev Sharma for commission of an offence punishable under section 500 of IPC, the petitioner who stood already exempted from appearance before the trial Court being old and infirm person, made a request to dispense with his examination under section 313 of CrPC, which prayer has been rejected by the trial Magistrate. On preferring revision against the said order by the petitioner-accused, same was too dismissed by the revisional Court, hence, this petition. 3. Learned counsel appearing on behalf of the petitioner-accused contended that both the impugned orders passed by the trial Magistrate as well as revisional Court are against the provisions of law and the dictum laid down in the cases of Basavaraj R. Patil v. State of Karnataka [ AIR 2000 SC 3214 ], and Keya Mukhargee v. Magma Leasing Ltd. [ (2008)8 SCC 447 ]. It is submitted that the offence alleged against the petitioner comes to the category of a summons case, where the Court has dispensed with personal attendance of the accused during the trial and therefore it ought to have dispensed with his appearance at the stage of recording statement under section 313 in view of proviso to section 313(1)(b) CrPC. He contends that the legislative intent envisaged in section 313 of CrPC is that in less serious matters, personal appearance of the accused can be dispensed with even at the stage of statement under section 313 CrPC. He contends that the legislative intent envisaged in section 313 of CrPC is that in less serious matters, personal appearance of the accused can be dispensed with even at the stage of statement under section 313 CrPC. It is thus contended that the Courts below ought to have considered the exigencies and passed appropriate orders in terms of the above. Hence, according to the learned counsel for the petitioner, the orders passed by the Courts below are not sustainable in law and under the circumstances, the petition is liable to be allowed. 4. Per contra, learned Public Prosecutor appearing for the respondent/State, has submitted that personal appearance of the accused at the stage of recording statement under section 313 CrPC is mandatory in view of the word ‘shall’ used in clause (b) to section 313(1) of the Code. The same has to be interpreted as obligatory. According to her, claim of the petitioner that he is indisposed or suffering from any medical problem that would impede his movement, is totally false. 5. Heard the learned counsel appearing for the parties and also perused the order impugned with relevant provisions of law. 6. The question that calls for consideration is when personal appearance of the petitioner is exempted and thereafter he is allowed to appear through his counsel, then at the stage of recording of statement under section 313 CrPC, after prosecution evidence is over, he can still claim exemption from personal appearance? 7. At this stage, it would be useful to gather the intention of the legislature created by section 313 : “313. Power to examine the accused. -- (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-- (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case : Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub-section (1). (2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. (5) The Court may take help of Prosecutor and defence counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.” 8. In the case of Bibhuti Bhusan Das Gupta v. State of West Bengal [ AIR 1969 SC 381 ], while dealing with section 342 of the Criminal Procedure Code, 1988, it was held that after close of prosecution evidence, the accused must be questioned and his pleader could not be examined in his place. 9. However, in a later case, reported as Chandulal Chandraker v. Puran Mal [1988 Supp. SCC 570], the Hon’ble apex Court was pleased to dispense with personal appearance of the accused for recording statement under section 313 CrPC. This direction was given in view of accused’s undertaking that he would not make any statement under section 313 and would not later contend that any prejudice had been caused to him on account of his non-examination. 10. In Basavaraj R. Patil (supra), it has been observed by Hon’ble apex Court : “24. 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 for the benefit of the accused. 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 for 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 satisfies 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 of 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? 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. 26. 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 questionnarie. He should affix his signature on all the sheets of the answered questionnarie. 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. The Court has also to ensure that the imaginative response of the counsel is intended to be availed to be a substitute for taking statement of accused. 27. In our opinion, if the above course is adopted in exceptional exigency it would not violate the legislative intent envisaged in section 313 of the Code.” 11. Subsequently, in the case of Keya Mukherjee v. Magma Leasing Limited and another [ (2008)8 SCC 447 ], the Hon’ble apex Court considered various decisions pertaining to import of section 313 CrPC. It held that in Chandu Lal Chandraker’s case (supra), no reference was made to the judgment in Bibhuti Bhusan Das Gupta’s case( supra). Thus, general rule that the accused would have to remain present at the stage of statement under section 313 was affirmed. However, in respect of less serious offences the Court observed as follows : “22. The one category of offences which is specifically exempted from the rigour of section 313(1)(b) of the Code is “summons cases”. It must be remembered that every case in which the offence triable is punishable with imprisonment for a term not exceeding two years is a “summons case”. Thus, all other offences generally belong to a different category altogether among which are included offences punishable with varying sentences from imprisonment for three years up to imprisonment for life and even right upto death penalty. Hence, there are several offences in that category which are far less serious in gravity compared with grave and very grave offences. Even in cases involving less serious offences, cannot the Court extent a helping hand to an accused who is placed in a predicament deserving such a help?” 12. Hence, there are several offences in that category which are far less serious in gravity compared with grave and very grave offences. Even in cases involving less serious offences, cannot the Court extent a helping hand to an accused who is placed in a predicament deserving such a help?” 12. On coming to the facts of the present case, it seems that case pertaining to commission of offence punishable under section 500 of IPC, i.e., defamation is pending against the petitioner before the trial Magistrate. The said offence alleged against the petitioner is punishable with simple imprisonment up to two years or fine or both, which is specified as “summons case”. Trial of summons cases by Magistrates in Chapter XX of the Code is prescribed. Obviously, trial conducted by the Magistrate for such an offence is called as summons trial. Where the Court has dispensed with the personal attendance of the accused in a summons case, his examination under clause (b) of section 313(1) may be dispensed with but where the accused is not exempted from personal appearance, he cannot claim exemption before the Court from statement under section 313 of CrPC. In other sense, the Court may dispense with the examination of the accused under this section, if it has dispensed with accused’s personal attendance. 13. Considering the law laid down by Hon’ble apex Court as discussed herein above and in view of the word ‘may’ used in proviso to section 313(1)(b) of the Code, it is manifestly clear that the learned trial Court in a given case may or may not allow the prayer of the accused for exemption from personal appearance under section 313 CrPC. While passing an order thereunder, the trial Magistrate exercises a judicial discretion. He has to be conscious of two factors while deciding such a plea; firstly, that it is a summons case and secondly, that personal appearance of the accused remained exempted throughout the trial. If still the Court is of the opinion that personal appearance of the accused is necessary, needless to say, it would be free to ask him to appear before it. In the impugned order, however, while rejecting application for exemption from personal appearance at the stage of recording statement under section 313 CrPC, either the trial Court was not conscious of proviso to section 313(1)(b) or arguments with regard to the same were never addressed before it. In the impugned order, however, while rejecting application for exemption from personal appearance at the stage of recording statement under section 313 CrPC, either the trial Court was not conscious of proviso to section 313(1)(b) or arguments with regard to the same were never addressed before it. The order is silent on the question whether the Court required presence of the accused to answer cetain questions having arisen in the course of trial or his presence was necessary for any other reason such as to see his demeanor. The trial Court merely rejected the application on the ground that the affidavit is not filed. The trial Court decided the question of exemption from personal appearance at the stage of statement under section 313 CrPC without particularly referring to proviso to section 313(1)(b) CrPC, i.e., whether the petitioner was entitled to exemption in view of the said proviso or not. The proviso in fact lays down that in a summons case, where the Court has dispensed with personal attendance of the accused, it may also dispense with his examination under clause (b). Since there is no discussion at all in the impugned order in terms of the proviso, both the impugned orders dated 22.3.2012 and 9.5.2012 are liable to be and stand hereby set aside. The matter is remitted back to the trial Court for decision afresh. 14. Resultantly, the petition stands allowed in the manner indicated above.