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2014 DIGILAW 115 (BOM)

Kalyan v. Adv. Tillottama Chudaman Patil

2014-01-20

ABHAY M.THIPSAY

body2014
JUDGMENT P.C. 1. Heard Mrs. S.B. Warma, the learned Counsel holding for Mr. B.R. Warma, the learned Counsel for the petitioners. Heard Mr. P.P. More, the learned Additional Public Prosecutor, for the respondent no.2. 2. The petitioners are the accused in Summary Criminal Case No. 346/2011, pending before the Judicial Magistrate (First Class), Amalner. The case arises on a complaint filed by the respondent no.1 herein and in respect of offence punishable under Section 500 of the IPC read with Section 34 of the IPC. The petitioners have approached this Court, invoking its jurisdiction under Articles 226 and 227 of the Constitution, praying that by a writ of certiorari, or any other appropriate writ, direction or order, the order dated 21-12-2013, passed by the learned Magistrate, rejecting the application (Exhibit 85) made by the petitioners, for recording their statement under Section 313 of the Code of Criminal Procedure [For short, "the Code"], afresh, be quashed and set aside, and that the learned Magistrate be directed to record the statement of each accused afresh. 3. The grievance of the petitioners is that, the examination of the petitioners, as contemplated under Section 313 of the Code, was not done properly by the learned Magistrate. It is submitted that, composite questions were asked to the petitioners and, as such, it was not possible for the petitioners to give proper replies to those questions. It is submitted that, this is causing prejudice to the petitioners. 4. On going through the copies of the record of the examination of the accused persons, as are annexed to the petition, I find substance in this contention. I find that, the questions put by the Magistrate are actually composite questions and each question consists of some sub-questions. It is obvious that, answers given to such questions cannot be properly comprehended. In the view that I am taking, it is not necessary to elaborately discuss the matter, but by way of example, the Question No.13 put to the petitioner no.1 - Kalyan s/o. Sahebrao Patil - is taken into consideration. This question reads as under: "In the statement of witness no.2 – Kanti Arjun Patil – it is stated that, on 28-7-2011, a news was published in the newspaper. In that, it was published that, the complainant was expelled from MNS. In that news item the message was that, by taking photos with superiors, a business was made. This question reads as under: "In the statement of witness no.2 – Kanti Arjun Patil – it is stated that, on 28-7-2011, a news was published in the newspaper. In that, it was published that, the complainant was expelled from MNS. In that news item the message was that, by taking photos with superiors, a business was made. She read the news item in 'Punyanagari' newspaper. She received phone calls from many women. How such news came out in respect of the complainant? On that, when she inquired with the accused no.2 in respect of the news item, the accused no.2 stated that an apology would be tendered. Because of that news item, the complainant was defamed. What you have to say about this ?" 5. The above question is answered as (It is false). Now, this question consists of the statements that, on a particular date, a news was published in a newspaper. The question also states what was the matter published by way of said news. The question also says that, the witness no.2 read the news in a particular newspaper. The question also says that, thereafter, the said witness received phone calls from a number of women. The question also states that, the said witness then made inquiries with the accused no.2 (Not the petitioner no.1 who was examined). The question also states that, the accused no.2 said that he would tender an apology. The question then finally says that, because of the publication of the said news item, the complainant i.e. the respondent no.1 was defamed. Now, the answer, 'It is false', cannot be properly understood, inasmuch as, it is not clear, whether the denial is in respect of publication of news, or about the matter containing the news, or about the witness no.2 having read that in a particular newspaper, or about the witness having received a number of telephone calls from certain women, or about the witness having made inquiries with the accused no.2, about the accused no.2 having said that he would tender an apology, and ultimately about, that, because of the publication of the said news item, the complainant was defamed. The answer, 'It is false', would be the right answer even if the denial is in respect of any one of these facts. 6. This is not what is contemplated by Section 313 of the Code. The answer, 'It is false', would be the right answer even if the denial is in respect of any one of these facts. 6. This is not what is contemplated by Section 313 of the Code. The object behind the examination of an accused is to provide an opportunity to the accused to explain any of the circumstances appearing against him in evidence. If such an opportunity is denied to the accused, it may affect the prosecution case adversely. As a matter of fact, an improper examination of an accused may, in some cases vitiate the trial itself and in that event, it would be the complainant or the prosecution that would suffer. The examination of the accused is not intended to be an idle formality and to be meaningful, the questions should be put intelligently and not merely as a matter of form. The questioning of the accused persons during their examination under Section 313 of the Code, in this case, is hardly satisfactory and fails to achieve the object behind the said provision. 7. However, I am not inclined to interfere in the matter by exercising the constitutional jurisdiction of this Court. It would be open for the petitioners to point out the object and purpose of the examination of an accused, as contemplated under Section 313 of the Code (which can be found in any standard commentary on the Code), and to point out to the court that, the questions put to the accused persons were not capable of being answered in a proper or straightforward manner. Needless to say that, the learned Magistrate would be bound to take such contentions into consideration. 8. It is made clear that, there is no finality in such matters, and therefore, even after having passed an order on 21-12-2013, below application at Exhibit 85, nothing would prevent the learned Magistrate from putting proper questions to the accused persons, so as to meet the object behind the provisions of Section 313 of the Code, should the Magistrate think that the questions put earlier were not proper. The matter, therefore, may be left to the Magistrate. 9. The petition is disposed of with the aforesaid observations.