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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.