Madras High Court
Pratap K Moturi vs The State Rep.By on 9 September, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.R.C.No.1277 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.09.2022
CORAM:
THE HON'BLE MR.JUSTICE P.VELMURUGAN
Crl.R.C.No.1277 of 2022
Pratap K Moturi ... Petitioner
..vs..
1.The State rep.by
Inspector of Police,
CCB Team-XVII-A Police Station,
Chennai.
2.Lalitha Mohan ... Respondent
Criminal Revision Case filed under Sections 397 r/w 401 Cr.P.C
to set aside the order passed in Crl.M.P.No.44 of 2022 in C.C.No.46 of
2013 dated 21.06.2022 on the file of the Special Metropolitan
Magisterial Land Grabbing Court No.1, Egmore, at Allikulam, Chennai.
For Petitioner : Mr.J.Pothiraj
For Respondents : Mr.S.Sugendran
Additional Public Prosecutor
for R1
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https://www.mhc.tn.gov.in/judis
Crl.R.C.No.1277 of 2022
ORDER
This Criminal Revision Case has been preferred challening the order dated 21.06.2022 made in Crl.M.P.No.44 of 2022 in C.C.No.46 of 2013 on the file of the learned Special Metropolitan Magisterial Land Grabbing Court No.I, Egmore at Allikulam, Chennai.
2. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor appearing for the first respondent and also perused the materials available on record.
3. The revision petitioner/de-facto complainant has filed a complaint against the second respondent and yet another. Based on the complaint, the first respondent/Police registered a case against the second respondent herein/A2 for the offences under Section 420 r/w 34 IPC and Section 175 r/w 34 IPC. After investigation, the first respondent/Police laid a charge sheet before the Special Metropolitan Magisterial Land Grabbing Court No.I, Egmore at Allikulam, Chennai. The learned Magistrate has taken the case on file in C.C.No.46 of 2013. After framing charges, on completion of the examination of the prosecution side Page No.2/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1277 of 2022 witnesses, the case was listed for questioning under Section 313(5) r/w 317 of Code of Criminal Procedure. At this stage, the second respondent/accused has filed a petition before the Court below seeking to dispense with her personal appearance before the trial Court and also to permit her to file a written statement for the questionnaire under Section 313 Cr.P.C. The trial Court, after considering the facts and circumstances and the reasons stated by the accused, has allowed the petition and dispensed with the personal appearance of the second respondent for questioning under Section 313 Cr.P.C. Challenging the said order, the petitioner/de-facto complainant has filed the present revision petition.
4.The learned counsel for the petitioner submitted that the presence of the second respondent/A2 before the trial Court for answering the questionnaire under Section 313 Cr.P.C is very much essential. In order to avoid certain answers for the questions, the second respondent purposefully filed the petition seeking to dispense with her Page No.3/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1277 of 2022 personal appearance before the trial Court and hence, the order of the trial Court may be set aside.
5.Admittedly, questioning under Section 313 Cr.P.C is between the Court and the accused. The de-facto complainant has nothing to do with that. It is the right of the accused, after completing the prosecution side evidence and all incriminating circumstances appears from the prosecution witnesses is to be culled out and put before the accused and the accused has to give explanation for that. In the affidavit filed in support of the miscellaneous petition, the second respondent/A2 has stated that she is aged about 80 years and suffering with Spinal cord disease and that she is unable to move more than ten steps and in support of her claims she has also filed medical reports. Due to old age and illness, the second respondent/A2 seeks permission for dispensing with her personal appearance before the trial Court and to answer the questions under Section 313 Cr.P.C.
6. On a perusal of the records, it is seen that the learned trial Judge has passed the following order:
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https://www.mhc.tn.gov.in/judis Crl.R.C.No.1277 of 2022 ''11.Considering the medical illness of the petitioner/accused and circumstances of this case and object of the 313(1)(b) Cr.P.C provision and this case also after completing the prosecution evidence, posted for 313(1)(b) of Cr.P.C questioning, hence this application deserves to be allowed. Accordingly, this application is allowed, the counsel for the accused and Assistant Public Prosecutor the counsel who is representing the victim as assist the prosecution capacity all are directed to co-operate this Court, to prepare a draft questionnaire and file a draft questionnaire. Petition allowed. No costs.''
7. The Court below allowed the petition following the decision of the Hon'ble Apex Court in Basavaraj R.Patel and others vs. State of Karnataka and others reported in 2000 (8) SCC 740.
8. If the accused is granted permission to give answers to the questions under Sesction 313 Cr.P.C., by appointing an Advocate Commissioner, no prejudice would be caused to the petitioner and therefore, there is no merit in the revision and the same liable to be dismissed.
9.However, the learned Magistrate is directed to appoint an Page No.5/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1277 of 2022 Advocate Commissioner from member of local Bar Association, who is well versed in Criminal Laws and practising in criminal side before the trial Court as an Advocate Commissioner and also the trial Court is directed to prepare a questionnaire under Section 313 Cr.P.C like any other case culled out from all incriminating circumstances of the prosecution witnesses and hand over to the learned Advocate Commissioner. The learned Advocate Commissioner has to visit the place, where the accused is residing in the presence of the respective counsel on either side and to ascertain the position of the accused and thereafter, read over all the questionnaires prepared by the learned Magistrate with reference to the incriminating circumstances culled out from the prosecution side witnesses to the second respondent/A2. The learned Advocate Commissioner is also directed to record the answers of the accused as it is verbatim and thereafter, if the accused files any written statement, the same shall be taken on file and the learned Advocate Commissioner shall submit a report before the learned Magistrate. On receipt of the report, the learned Magistrate is directed to Page No.6/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1277 of 2022 proceed with the case in accordance with law.
10.The second respondent/accused is directed to bear the costs for appointment of Advocate Commissioner. After execution of the warrant, the learned Magistrate is directed to complete all such exercise on or before 27.10.2022. Thereafter, the learned Magistrate shall proceed with the matter in accordance with law.
11. Accordingly, this Criminal Revision Case is disposed of. The order dated 21.06.2022 passed in Crl.M.P.No.44 of 2022 in C.C.No.46 of 2013 by the learned Special Metropolitan Magistrate, Special Metropolitan Magistrate Land Grabbing Court No.I, Egmore at Allikulam, Chennai shall stand modified in the above terms.
09.09.2022 Note: Issue order copy on 12.09.2022 Index: Yes/No Speaking Order/Non-Speaking Order ms P.VELMURUGAN, J.
Page No.7/8 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1277 of 2022 ms To
1.The Special Metropolitan Magistrate Land Grabbing Court No.1, Egmore at Allikulam, Chennai.
2.The Public Prosecutor, High Court, Madras.
3.The Inspector of Police, CCB Team-XVII-A Police Station, Chennai.
Crl.R.C.No.1277 of 2022
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