Accused cannot claim benefit of non-recording of Section 313 statement after deliberate and persistent non-appearance.

The Petitioner was accused of an offence under Section 138 of the Negotiable Instruments Act, 1881, in a complaint filed by Respondent No. 2 on 06.04.2011

During the trial (Criminal Case No. 1599 of 2011), the Petitioner failed to cross-examine the complainant despite several adjournments, leading the trial court to close his right to cross-examination

Furthermore, the Petitioner did not remain present for the recording of his statement under Section 313 of the Cr.P.C.

Consequently, the Additional Chief Judicial Magistrate, Gandhidham-Kachchh, convicted the Petitioner on 23.03.2026 and sentenced him to one year of imprisonment

The Petitioner filed this writ petition under Articles 226/227 of the Constitution and Section 528 of the BNSS to quash the conviction and arrest warrant, alleging a violation of natural justice and citing personal safety concerns

1. Whether the judgment of conviction is void due to the non-recording of the accused’s statement under Section 313 of the Cr.P.C.

2. Whether the Petitioner is entitled to the extraordinary remedy of a writ petition when a statutory right of appeal is available

3. Whether the Petitioner’s claims regarding threats to life and lack of legal representation justified his absence from trial proceedings

The court considered Section 313 of the Cr.P.C. (and corresponding Section 351 of BNSS), which mandates the examination of the accused to explain incriminating evidence

It evaluated the precedent Raj Kumar @ Suman v. State (NCT of Delhi) (2023) LiveLaw SC 434 regarding the mandatory nature of recording such statements

Additionally, the court applied the principle of "exhaustion of alternative remedies," noting that a conviction under the Negotiable Instruments Act must primarily be challenged via a statutory appeal under criminal procedure law rather than a writ under Article 226/227

The court rejected the Petitioner's contention that the trial court erred in law. It observed that the trial court was "constrained" to close the right to record the Section 313 statement because the Petitioner and his advocate deliberately remained absent despite multiple opportunities

The court noted that the Petitioner had neither surrendered nor filed a regular appeal, attempting instead to bypass the standard legal process

Regarding the Petitioner’s claim of "hostile atmosphere" and life threats at Gandhidham, the court found no evidence that these concerns were ever raised during the trial, dismissing them as a "lame excuse and afterthought"

The court also found the claim regarding the unavailability of local advocates to be unsubstantiated, noting the Petitioner was adequately represented by counsel in the present High Court proceedings

The Court held that the proper remedy for the Petitioner is to surrender and file a statutory appeal before the appropriate forum rather than invoking the High Court's extraordinary jurisdiction

The trial court was held not to be at fault for the non-recording of the Section 313 statement given the Petitioner’s persistent non-cooperation and conduct

All prayers, including the quashing of the arrest warrant and the transfer of the case to Ahmedabad, were denied