Rajasthan High Court - Jaipur
Sachchida Nand And Anr. vs Pooran Mal And Anr. on 24 March, 1987
Equivalent citations: 1988CRILJ511, 1987(2)WLN479
ORDER M.B. Sharma, J.
1. An important question of law has been raised in these misc. petitions under Section 482 Cr.P.C. and that is where in a summons case if the court has dispensed with the personal attendance of the accused under Section 205 or 317, Cr. P.C., whether it is must that the accused should be personally examined to explain the circumstances appearing in the evidence against him? -
2. The contention of the learned Counsel for the accused-petitioners in these two misc. petitions is that in view of introduction of the proviso to Sub-section (i) of Section 313 Code of Criminal Procedure, 1973 (New Code) the law laid down by the Supreme Court in the case of Bibhuti Bhusan Das Gupta v. State of West Bengal , does not hold the field, and if the accused applies even at the stage of his examination under Section 313 of the New Code, to dispense with his examination under Clause (b) of Sub-section (1) of Section 313 of the New Code, then the court has no option but to allow the request of the accused and dispense with the examination. It is further contended that if the court does not dispense with the examination of the accused under Clause (b) of Sub-section (1) of Section 313 of the New Code, then the counsel for the accused, through whom the presence of the accused was dispensed with earlier, can be examined. In support of his submission learned Counsel placed reliance on Smt. Angelica Ferrao v. The State 1979 Cri LJ NOC 8 (Goa), and in the case of Delhi Development Authority v. Amarjit Singh 1985 Cri LJ 154 (Delhi). Mr. Rathore, learned Counsel appearing for the non-petitioners opposing the two misc. petitions on the other hand contended that the court has no doubt discretion to dispense with the examination of the accused under Sub-section (1)(b) of Section 313 of the New Code but the court cannot examine the counsel of the accused through whom the presence of the accused had been dispensed with. He further contends that in the present case though the impugned order of the learned Magistrate is under Sub-section (1)(a) of Section 313 Cr. P.C. and the learned. Magistrate has given reasons as to why the accused persons should be personally examined under Section 313 Cr. P.C. and the proviso to Sub-section (1) of Section 313 of the New Code will only apply to a case falling under Clause (b) of Sub-section (1) of Section 313 of the New Code and not to Clause (a) of Sub-section (1) of Section 313 thereof. In support of this contention that the introduction of the proviso to Sub-section (1) of Section 313 of the New Code has not made any difference to the law laid down by their Lordships of the Supreme Court in the case of Bibhuti Bhushan Das Gupta (supra), learned Counsel submits that this Court in the case of Mst. Kesar v. State of Rajasthan 1975 Raj LW 72 : 1975 Cri LJ 1272 took a view that the Magistrate may desire presence of the accused at any stage and plea that the accused do not want to answer the question is no ground for exempting with the presence of the accused. I will deal with the case law at the latter stage but at this stage I would like to say that the case of Mst. Kesar (supra) is under Section 342 of the Code of Criminal Procedure, 1898 (Old Code).
3. The accused petitioners are facing trial for offences under Section 511, IPC in the court of Munsiff and Judicial Magistrate, Khetri since 1979. The offence is a summons case and is triable by a Magistrate. The two accused-petitioners were exempted under Section 317, Cr. P.C. from personal attendance and were allowed to be represented by the counsel. The case relates to a news item published in Hindustan, a daily Hindi news-paper from Delhi dated March 17, 1978. The news item related to some Junior Mehmood night which was held on Feb. 26, 1978 in Deen Bandhu Talkies of which the complainant is proprietor and owner. The news item related to an incident which is said to have taken place in the night where the women and girls are said to have been molested and raped. Learned Magistrate took cognizance of offence against the accused in the complaint filed before him for offence under Section 500, IPC. The presence of the accused was exempted and they were allowed to be represented through their counsel. The evidence for the prosecution concluded and the stage of examination of the accused under Section 313, Cr. P.C. came. At that point of time an oral prayer was made on behalf of the accused-petitioners that the case is a summons case and personal attendance of the accused has been dispensed with and therefore the court may also dispense with their examination under Section 313(1)(b) of the New Code and if it may be thought necessary to examine the accused, then the statements of their counsel should be recorded under Section 313 Cr. P.C. The learned Magistrate in the impugned order did not accept any prayer and ordered that the accused-persons should appear personally for their examination under Section 313 Cr. P.C. The learned Magistrate in his impugned order gave reasons why he considered the presence of the accused-persons necessary for their examination under Section 313 Cr. P.C.
4. I will now revert to the question formulated at the earlier stage of this order and the question is as to whether the accused has a right that the court should dispense with their examination because the personal attendance of the accused has been dispensed with earlier and the counsel for the accused can be examined.
5. It is necessary to go briefly into the history of the Code. Prior to Section 313 of the New Code the relevant provisions were Section 342 of the old Code. Section 342 of the old Code reads as under:
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 an 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 answer 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 path shall be administered to the accused when he is examined under Sub-section (1).
A look at the aforesaid Sub-section (1) of Section 342 of the old Code will show that under the earlier part it was discretionary with the court calling the accused petitioner at any stage of inquiry or trial for the purpose of enabling him to explain any circumstances appearing in the evidence against him to examine him as it thinks necessary but under the latter part thereof the court shall for the purpose as 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. Now in Sub-section (1) of Section 342 of the Old Code the words used in earlier part are similar to those used in Clause (a) of Sub-section (1) of Section 313 of the New Code and the words used in the latter part are similar to those used in Clause (b) of Sub-section (1) of Section 313 of the New Code. The only difference is that in Sub-section (1) of Section 313 of the New Code the words 'personally' have been introduced whereas in Section 342(1) the words 'personally' were not there but it was the accused to whom the questions were to be put for the purpose of enabling him to explain the circumstances against him in the evidence and in my opinion the addition of the word 'personally' in Section 313(1) makes no difference. Even under the proviso to Section 342 of the Old Code examination of the accused personally was necessary. The Supreme Court in the case of Bibhuti Bhushan Das Gupta after extracting Section 342 of the old Code at page 383, col. 2 (of AIR) : (at P. 657, Col. 1 of Cri LJ) said:
Sub-section (1) of Section 342 consists of two parts. The first part gives a discretion to the court to question the accused at any stage of an inquiry or trial without previously warning him. Under the second part the court is required to question him generally on the case after the witnesses for the prosecution have been examined and before he is called for his defence. The second part is mandatory and imposes upon the court a duty to examine the accused at the close of the prosecution case in order to give him an opportunity to explain any circumstances appearing against him in the evidence and to say in his defence What he wants to say in his own words.
The court again said in para 6 that:
The privilege of making a statement under Section 342 is personal to the accused. The clear intention of the section is that only he and nobody else can be examined under it. This conclusion is reinforced if we look at Section 364. The whole of his examination including every question put to him and every answer given by him must be recorded in full and interpreted to him in a language which he understands and he is at liberty to explain or add to his answers and when the whole is made conformable to what he declares is the truth the record has to be signed by him and the Magistrate. The idea that the pleader can be examined on his behalf is foreign to the language of Sections 342 and 364.
It will therefore be clear that notwithstanding the fact that the word 'personally' was not there in Section 342 of the Old Code, the Supreme Court held that making of statement under Section 342 of the Old Code by the accused was necessary and his counsel was not allowed to be substituted for him. As already stated earlier Sub-section (1) of Section 313 of the New Code and Sub-section (1) of Section 342 of the old Code are the same with the difference that Sub-clause (1) has been re-arranged in Clause (a) and the word "personally" has been added. As already stated earlier, the addition of the word personally does not make any difference in the law laid down by their Lordships of the Supreme Court in Bibhuti Bhushan Das Gupta's case (supra) and it is the accused and accused alone who is to be examined under Section 313 of the New Code, though it is discretionary to examine the accused under Clause (a) of Sub-section (1) of Section 313 of the New Code. The proviso to Sub-section (1)(b) of the New Code is 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), but so far as the discretion of the court under Clause (b) of Section 313(1) is concerned, if the discretion is properly exercised, the proviso to. Sub-section (1)(b) of Section 313 of the New Code shall not be attracted because that proviso carves out an exception to Clause (b) of Sub-section (1) of Section 313 of the New Code.
6. Under the proviso to Sub-section (1) of Section 313 of the New Code a power has been given to the court to dispense with the examination of the accused under Section 313 of the New Code in case the case is summons case and the court has dispensed with the personal attendance of the accused The court can only dispense with the examination of the accused under clause(1)(b) of Section 313 of the New Code, but having dispensed with such examination of the accused no power is vested to examine his advocate under Section 313(1)(b)of the New Code. In the case of Amarjit Singh, 1985 Cri LJ 154 (Delhi) (supra) it was held that a plain reading of Section 313(1)(b) would show that the provision is mandatory and it had to be so because it is an essential stage in the trial of a case and the statement of the accused under Section 313(1)(b) has to be recorded irrespective of the fact whether the accused intends to lead defence or not. A plain reading of the proviso would show that the Legislature has conferred a discretion on the court to dispense with the personal examination of the accused and the intention could never be to altogether bid goodbye to the requirement of Section 313(l)(b). The court further held that by conferring this discretion, apparently the Legislature never intended to dilute the mandatory nature of Section 313(l)(b), and thus even in a summons case where the court has dispensed with the personal attendance of the accused the court could only dispense with the personal examination under Section 313(l)(b) under certain circumstances but to say that the court is absolved of its duty to examine the accused under Section 313(l)(b) would not be correct. It is therefore necessary for the court in such a case to record the examination of the accused under Section 313(l)(b) through his counsel. With due respect to the learned Judges, they have not correctly appreciated the law laid down in the case of Bibhuti Das Gupta 1969 Cri LJ 654 (SC) (supra) wherein it has been clearly laid down that it is the privilege of the accused to be examined under Section 342(1) of the old code. I have already said earlier that the word 'personally' under Section 313(l)(b) of the new Code makes no difference and even under Section 342(1) of the old Code it was the accused who alone could be examined and his advocate could be no substitute for him. A reading of the proviso to Sub-section (1)(b) of Section 313 of the New Code will show that it empowers the court only in a case where it has dispensed with the personal attendance of the accused to dispense with his examination under Clause (b) of Sub-section (1) of Section 313 of the New Code. Once the examination is dispensed with no question of examining his counsel will arise. Once the examination as aforesaid of the accused has been dispensed with there will be absolutely no need to examine the counsel and as already stated earlier his counsel can be no substitute for the accused who is to be examined personally under law. Thus, with due respect to the learned Judges in the case of Amarjit Singh 1985 Cri LJ 154 (Delhi) (supra) I am of the opinion that the court has power to dispense with the examination of the accused under Clause (1)(b) of Section 313 of the New Code and once it does so, it will not be necessary to examine the accused under Section 313 Cr. P.C. and in such a case the examination of the accused to explain the circumstances appearing against him is not a must. In the case of Smt. Angelica Ferrao v. The State 1979 Cri LJ NOC 8 (Goa) (supra), the facts have not been stated but in the head note it has been said that if the accused is exempted from personal appearance in summons case and there is specific prayer on behalf of the accused for dispensing with his examination under Section 313, the examination could be dispensed with. There can be no dispute with the statement of law as it is nothing but reproduction of the proviso in Sub-section (1) of Section 313 of the New Code.
7. The submission of the learned Counsel for the accused petitioners is that as and when the personal attendance of the accused has been dispensed with in a summons case, then if a prayer is made the court has no discretion but to dispense with the examination under Clause (1) of Section 313 of the new Code. I am unable to agree with the learned Counsel for the petitioners. The personal attendance of the accused either under Section 205 or Section 317 of the New Code is for the purpose of recording the evidence and in the absence of the accused the question of examination under Section 313 and more so its Clause (1)(b) will arise only after the evidence of the prosecution is concluded and before the accused is called upon for his defence. Therefore, notwithstanding the fact that personal attendance of the accused has been dispensed with either under Section 205 or 317 of the new Code, it will still be within the discretion of the learned Magistrate under the proviso to Sub-section (1)(b) of Section 313 whether to dispense with the examination or not and the accused cannot claim as a matter of right. The learned Magistrate has given reasons why the examination of the accused under Section 313(l) of the new Code is necessary. The order of the learned Magistrate can always be under clause 1(a) of Section 313 of the new Code under which without previously warning the accused, the court may put such question to him as it considers necessary. As already stated earlier, Clause (b) of Sub-section (1) of Section 313 of the new Code is mandatory and once the presence of the accused is dispensed with in a summons case, the court may dispense with the examination of the accused under Section 313(l)(b) of the new Code. The Magistrate for the reasons given, has refused to exempt the examination of the accused. In a discretionary order, unless the discretion has been capriciously exercised and has not been exercised on sound ground, no application under Section 482 Cr. P.C. will lie. In this case the learned Magistrate has given the reasons as to why he thought necessary that the accused-petitioners should be examined under Section 313 Cr. P.C. and no case for interference in the discretion of the learned Magistrate is made out in the facts and circumstances of this case.
8. Consequently, both the misc. petitions are hereby dismissed.