Full Judgment Text
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CASE NO.:
Appeal (crl.) 620 of 2008
PETITIONER:
Keya Mukherjee
RESPONDENT:
Magma Leasing Limited & Anr
DATE OF JUDGMENT: 08/04/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
Reportable
CRIMINAL APPEAL NO. 620 OF 2008
(Arising out of SLP (Crl.) No.1477 of 2008)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Calcutta High Court dismissing
the application filed by the appellant under Section 401 read
with Section 482 of the Code of Criminal Procedure, 1973 (in
short the ’Cr.P.C’). Challenge in the said application was to
the order dated 26.9.2006 passed by learned Additional
Sessions Judge, 7th Fast Track Court, Calcutta in Criminal
Revision No. 36 of 2006 by which the order dated 2.2.2006
passed by learned Metropolitan Magistrate 11th Court,
Calcutta in Case No. C-510 of 2003 was upheld. Learned
Magistrate has rejected the appellant’s prayer for dispensing
with her examination under Section 313 Cr.P.C. by examining
of the pleader who was to represent her under Section 205
Cr.P.C. The proceeding was one under Section 138 of the
Negotiable Instruments Act, 1881 (in short the ’N I Act’).
Appellant appeared before learned Magistrate on 2.6.2003 and
was released on bail. On 31.1.2004 she was examined under
Section 251 Cr.P.C. Since she was absent on 3.7.2004,
warrant of arrest was issued against her but on 20.7.2004 she
surrendered before learned Magistrate and was released on
bail. Recording of evidence was completed and 5th May, 2005
was fixed for her examination under Section 313 Cr.P.C. But
on that date she was absent and a prayer was made for
adjournment. The date was adjourned to 12.5.2005. On that
date appellant filed a petition purported to be under Section
313 (1)(b) of Cr.P.C. Another petition was filed on 23.8.2005
under Section 205 Cr.P.C. Learned Magistrate allowed the
petition filed under Section 205 Cr.P.C. on 2.2.2006 subject to
the condition that the appellant shall appear before the Court
as and when called. But the petition under Section 313(1)(b)
Cr.P.C. was rejected.
3. Learned Magistrate fixed 6.3.2006 for examination of the
accused under Section 313 Cr.P.C. and directed the appellant
to be personally present on that date. It is against this order
of learned Magistrate a revision was filed before learned
Additional Sessions Judge who confirmed the order. The order
was challenged before the High Court, which as noted above
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the same was rejected.
4. Learned counsel for the appellant submitted that in view
of this Court’s order in Chandu Lal Chandraker v. Puran Mal
& Anr. (AIR 1988 SC 2163) the prayer should have been
accepted. It was pointed out that whether in summons
procedure case the accused should be exempted from personal
examination under Section 313 (1)(b), the Court has exercised
judicial discretion. The word ’may’ occurring in the proviso
clearly indicates that learned Magistrate may or may not
keeping the exigency of the circumstances allow the prayer of
the appellant for exemption from personal examination under
Section 313 Cr.P.C. According to him on the factual position
when the appellant was permitted to be represented in terms
of Section 205 Cr.P.C., the courts below had erroneously
rejected the prayer.
5. It is pointed out that question as to at what stage of the
trial the personal appearance of the accused was dispensed
with under Section 205 Cr.P.C. is not material because the
fact is that on the prayer of the appellant the petition under
Section 205 was allowed before the exemption of the accused
under Section 313 Cr.P.C. Merely because the prayer was
allowed only almost on the conclusion of the trial cannot be a
ground to reject a petition filed under the proviso to Section
313 (1)(b) Cr.P.C.
6. Learned counsel for the respondent No.1 supported the
impugned order of the High Court.
7. A few decisions of this Court need to be noticed in this
context.
8. In Bibhuti Bhusan Das Gupta & Anr. v. State of West
Bengal (AIR 1969 SC 381), this Court held that the pleader
cannot represent the accused for the purpose of Section 342 of
the Code of Criminal Procedure, 1898 (hereinafter referred to
as ’Old Code’) which is presently Section 313 Cr.P.C.
9. Section 313 Cr.P.C. reads as follows:
"313. Power to examine the accused.\027(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\027
(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).
(3) The accused shall not render himself liable to
punishment by refusing to answer such questions,
or by giving false answers to them.
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(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."
10. The forerunner of the said provision in the Old Code was
Section 342 therein. It was worded thus:
"342. (1) For the purpose of enabling the accused to
explain any circumstances appearing in the
evidence against him, the court may, at any stage of
any inquiry or trial, without previously warning the
accused, put such questions to him as the court
considers necessary, and shall, for the purpose
aforesaid, question him generally on the case after
the witnesses for the prosecution have been
examined and before he is called on for his defence.
(2) The accused shall not render himself liable to
punishment by refusing to answer such questions,
or by giving false answers to them; but the court
and the jury (if any) may draw such inference from
such refusal or answers as it thinks just.
(3) 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.
(4) No oath shall be administered to the accused
when he is examined under sub-section (1)."
11. Dealing with the position as the section remained in the
original form under the Old Code, a three-Judge Bench of this
Court in Hate Singh Bhagat Singh v. State of Madhya Bharat
(AIR 1953 SC 468) that:
"The statements of the accused recorded by
the Committing Magistrate and the Sessions
Judge are intended in India to take the place of
what in England and in America he would be
free to state in his own way in the witness-box.
They have to be received in evidence and
treated as evidence and be duly considered at
the trial."
12. Parliament, thereafter, introduced Section 342-A in the
Old Code (which corresponds to Section 315 of the present
Code) by which permission is given to an accused to offer
himself to be examined as a witness if he so chose.
13. In Bibhuti Bhusan Das Gupta’s case (supra) another
three-Judge Bench dealing with the combined operation of
Sections 342 and 342-A of the Old Code made the following
observations:
"Under Section 342-A only the accused can
give evidence in person and his pleader’s
evidence cannot be treated as his. The answers
of the accused under Section 342 is intended
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to be a substitute for the evidence which he
can give as a witness under Section 342-A. The
privilege and the duty of answering questions
under Section 342 cannot be delegated to a
pleader. No doubt the form of the summons
show that the pleader may answer the charges
against the accused, but in so answering the
charges, he cannot do what only the accused
can do personally. The pleader may be
permitted to represent the accused while the
prosecution evidence is being taken. But at the
close of the prosecution evidence the accused
must be questioned and his pleader cannot be
examined in his place."
14. The Law Commission in its 41st Report considered the
aforesaid decisions and also various other points of view
highlighted by legal men and then made the report after
reaching the conclusion that:
(i) in summons cases where the personal
attendance of the accused has been dispensed
with, either under Section 205 or under
Section 540-A, the court should have a power
to dispense with his examination; and
(ii) in other cases, even where his personal
attendance has been dispensed with, the
accused should be examined personally.
15. The said recommendation has been followed up by
Parliament and Section 313 of the Code, as is presently
worded, is the result of it. It would appear prima facie that the
court has discretion to dispense with the physical presence of
an accused during such questioning only in summons cases
and in all other cases it is incumbent on the court to question
the accused personally after closing prosecution evidence.
Nonetheless, the Law Commission was conscious that the rule
may have to be relaxed eventually, particularly when there is
improvement in literacy and legal-aid facilities in the country.
This thinking can be discerned from the following suggestion
made by the Law Commission in the same report:
"We have, after considering the various aspects
of the matter as summarised above, come to
the conclusion that Section 342 should not be
deleted. In our opinion, the stage has not yet
come for it being removed from the statute-
book. With further increase in literacy and
with better facilities for legal aid, it may be
possible to take that step in the future."
16. The position has to be considered in the present set-up,
particularly after the lapse of more than a quarter of a century
through which period revolutionary changes in the technology
of communication and transmission have taken place, thanks
to the advent of computerisation. There is marked
improvement in the facilities for legal aid in the country during
the preceding twenty-five years. Hence a fresh look can be
made now. We are mindful of the fact that a two-Judge Bench
in Usha K. Pillai (1993 (3) SCC 208) has found that the
examination of an accused personally can be dispensed with
only in summons case. Their Lordships were considering a
case where the offence involved was Section 363 IPC. The two-
Judge Bench held thus: (SCC pp. 212-13, para 4)
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"A warrant case is defined as one relating to an
offence punishable with death, imprisonment
for life or imprisonment for a term exceeding
two years. Since an offence under Section 363
IPC is punishable with imprisonment for a
term exceeding two years it is a warrant case
and not a summons case. Therefore, even in
cases where the court has dispensed with the
personal attendance of the accused under
Section 205(1) or Section 317 of the Code, the
court cannot dispense with the examination of
the accused under clause (b) of Section 313 of
the Code because such examination is
mandatory."
17. Contextually we cannot bypass the decision of a three-
Judge Bench of this Court in Shivaji Sahabrao Bobade v. State
of Maharashtra (1973 (2) SCC 793) as the Bench has widened
the sweep of the provision concerning examination of the
accused after closing prosecution evidence. Learned Judges in
that case were considering the fallout of omission to put to the
accused a question on a vital circumstance appearing against
him in the prosecution evidence. The three-Judge Bench made
the following observations therein: (SCC p. 806, para 16)
"It is trite law, nevertheless fundamental, that
the prisoner’s attention should be drawn to
every inculpatory material so as to enable him
to explain it. This is the basic fairness of a
criminal trial and failures in this area may
gravely imperil the validity of the trial itself, if
consequential miscarriage of justice has
flowed. However, where such an omission has
occurred it does not ipso facto vitiate the
proceedings and prejudice occasioned by such
defect must be established by the accused. In
the event of evidentiary material not being put
to the accused, the court must ordinarily
eschew such material from consideration. It is
also open to the appellate court to call upon
the counsel for the accused to show what
explanation the accused has as regards the
circumstances established against him but not
put to him and if the accused is unable to offer
the appellate court any plausible or reasonable
explanation of such circumstances, the court
may assume that no acceptable answer exists
and that even if the accused had been
questioned at the proper time in the trial court
he would not have been able to furnish any
good ground to get out of the circumstances on
which the trial court had relied for its
conviction."
18. The above approach shows that some dilution of the
rigour of the provision can be made even in the light of a
contention raised by the accused that non-questioning him on
a vital circumstance by the trial court has caused prejudice to
him. The explanation offered by the counsel of the accused at
the appellate stage was held to be a sufficient substitute for
the answers given by the accused himself.
19. What is the object of examination of an accused under
Section 313 of the Code? The section itself declares the object
in explicit language that it is "for the purpose of enabling the
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accused personally to explain any circumstances appearing in
the evidence against him". In Jai Dev v. State of Punjab
(AIR1963 SC 612) Gajendragadkar, J. (as he then was)
speaking for a three-Judge Bench has focussed on the
ultimate test in determining whether the provision has been
fairly complied with. He observed thus:
"The ultimate test in determining whether or
not the accused has been fairly examined
under Section 342 would be to inquire
whether, having regard to all the questions put
to him, he did get an opportunity to say what
he wanted to say in respect of prosecution case
against him. If it appears that the examination
of the accused person was defective and
thereby a prejudice has been caused to him,
that would no doubt be a serious infirmity."
20. Thus it is well settled that the provision is mainly
intended to benefit the accused and as its corollary to benefit
the court in reaching the final conclusion.
21. At the same time it should be borne in mind that the
provision is not intended to nail him to any position, but to
comply with the most salutary principle of natural justice
enshrined in the maxim audi alteram partem. The word "may"
in clause (a) of sub-section (1) in Section 313 of the Code
indicates, without any doubt, that even if the court does not
put any question under that clause the accused cannot raise
any grievance for it. But if the court fails to put the needed
question under clause (b) of the sub-section it would result in
a handicap to the accused and he can legitimately claim that
no evidence, without affording him the opportunity to explain,
can be used against him. It is now well settled that a
circumstance about which the accused was not asked to
explain cannot be used against him.
22. But the situation to be considered now is whether, with
the revolutionary change in technology of communication and
transmission and the marked improvement in facilities for
legal aid in the country, is it necessary that in all cases the
accused must answer by personally remaining present in
court. We clarify that this is the requirement and would be the
general rule. However, if remaining present involves undue
hardship and large expense, could the court not alleviate the
difficulties. If the court holds the view that the situation in
which he made such a plea is genuine, should the court say
that he has no escape but he must undergo all the tribulations
and hardships and answer such questions personally
presenting himself in court. If there are other accused in the
same case, and the court has already completed their
questioning, should they too wait for long without their case
reaching finality, or without registering further progress of
their trial until their co-accused is able to attend the court
personally and answer the court questions? Why should a
criminal court be rendered helpless in such a situation?
23. 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
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imprisonment for life and even right up to 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, can not
the court extend a helping hand to an accused who is placed
in a predicament deserving such a help?
24. Section 243(1) of the Code enables the accused, who is
involved in the trial of warrant case instituted on police report,
to put in any written statement. When any such statement is
filed the court is obliged to make it part of the record of the
case. Even if such case is not instituted on police report the
accused has the same right (vide Section 247). Even the
accused involved in offences exclusively triable by the Court of
Session can also exercise such a right to put in written
statements (Section 233(2) of the Code). It is common
knowledge that most of such written statements, if not all, are
prepared by the counsel of the accused. If such written
statements can be treated as statements directly emanating
from the accused, hook, line and sinker, why not the answers
given by him in the manner set out hereinafter, in special
contingencies, be afforded the same worth.
25. 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?
26. 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.
27. 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
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that those answers were given by the accused himself. He
should affix his signature on all the sheets of the answered
questionnaire. 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.
28. 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.
29. The above position was indicated in Basav Raj R Patil v.
State of Karnataka (2000 (8) SCC 740).
30. It is true that in Chandu Lal Chandraker’s case (supra)
two Hon’ble Judges have taken a view supporting that of the
appellant. It appears that in said case no reference was made
to Bibhuti Bhusan Das Gupta’s case (supra).
31. Judged in the background of principles set out in Basav
Raj R. Patil’s case (supra) the inevitable conclusion is that the
High Court’s impugned order does not suffer from any
infirmity to warrant interference.
32. Appeal is dismissed.