Calcutta High Court
Keya Mukherjee vs Magma Leasing Limited And Anr. on 23 March, 2007
Equivalent citations: 2007(3)CHN429
JUDGMENT Partha Sakha Datta, J.
1. By this application under Section 401 read with Section 482 of the Cr.PC what is challenged is an order dated 26.9.2006 passed by the learned Additional Sessions Judge, 7th Fast Track Court, Calcutta in Criminal Revision No. 36 of 2006 confirming thereby the order dated 2.2.2006 passed by the learned Metropolitan Magistrate, 11th Court, Calcutta incase No. C-510 of 2003 wherein the learned Magistrate rejected the petitioner's prayer for dispensing with her examination under Section 313 Cr.PC by examination of the pleader who was to represent her under Section 205 of Cr.PC.
2. It was a case under Section 138 of the N.I. Act. The petitioner appeared before the learned Magistrate on 2.6.2003 and was released on bail and then on 31.1.2004 she was examined under Section 251 Cr.PC. On 3.7.2004 as she was absent warrant of arrest was issued against her but on 20.7.2004 she surrendered before the learned Magistrate and was released on bail. Then recording of evidence was completed, a date was fixed for her examination under Section 313 Cr.PC. 5.5.2005 was the date fixed for examination of the accused under Section 313 Cr.PC but on that day she was absent by a petition supported by medical certificate and examination of the accused under Section 313 Cr.PC was adjourned to 12.5.2005. On 12.5.2005 the petitioner filed a petition under Section 313(l)(b) of Cr.PC. Another petitionfiled by the petitioner on 23.8.2005 under Section 205 Cr.PC was also pending for disposal. Learned Magistrate allowed the petition on 2.2.2006 under Section 205 of Cr.PC subject to the condition that the petitioner should appear before the Court as and when called for but rejected the petition under Section 313(l)(b) Cr.PC and the learned Magistrate fixed 6.3.2006 for examination of the accused under Section 313 Cr.PC and directed the petitioner to be personally present on that day. It is against this order of the learned Magistrate that a revisional application was moved before the learned Additional Sessions Judge, 7th Fast Track Court, Calcutta who confirmed the judgment and order of the learned Magistrate and dismissed the revisional application.
3. The learned Additional Sessions Judge observed that as per Section 313(l)(b) of the Cr. PC the Court may dispense with examination under the Clause (b) where personal appearance of the accused has been dispensed with but the word 'may' indicates mere distinction of the Court which should be exercised judiciously where personal attendance has been dispensed with in the summons procedure case. Learned Additional Sessions Judge found that the accused did not take resort to Section 205 Cr. PC before the date was filed for examination of the accused under Section 313 Cr. PC and the learned Magistrate has not allowed any such petition at that stage and on the contrary it appears that it was only after fixing the case for examination of the accused under Section 313 Cr.PC that the accused/petitioner filed one petition under Section 313(l)(b) Cr.PC and then subsequent to this petition on another day she filed a petition under Section 205 Cr.PC and thus the lower Court record did not suggest that at the earlier stage the lower Court dispensed with the personal attendance of the accused under Section 205 Cr. PC.
4. Therefore, the question is whether the learned Additional Sessions Judge was right in confirming the order of the learned Magistrate whereby the learned Magistrate rejected the petition under Section 313(l)(b) of Cr. PC. Mr. Shib Shankar Banerjee, learned Advocate appearing for the petitioner submitted that when the learned Magistrate allowed the petition of the petitioner under Section 205 Cr.PC and where the case was triable according to summons procedure there was no reason to reject at the same time the petition filed by the petitioner under the proviso to Clause (b) of Sub-section (1) of Section 313 Cr.PC. It is the submission of Mr. Banerjee that the question as to what stage of the trial the personal appearance of the accused was dispensed with under Section 205 of the Cr.PC is not material because the fact is that on the prayer of the petitioner the petition under Section 205 of Cr. PC was allowed before the examination of the accused under Section 313 Cr. PC and simply because of the fact that such prayer was allowed only almost at the conclusion of the trial is no ground to reject the other petition filed under the proviso to Section 313(l)(b) of the Cr. PC.
5. Mr. Amit Bhattacharya, learned Adovcate appearing with Mr. Sandipan Ganguly, learned Advocate for the O.P. No. 1 submits that whether in a summons procedure case the accused should be exempted from the personal examination under Section 313(l)(b) of the Cr. PC has to be left to the judicial discretion of the Magistrate because even though the case was triable by summons procedure the word 'may' occurring in the proviso clearly indicates that it is the learned Magistrate who may or may not in the exigency of the circumstances allow the prayer of the petitioner for exemption from personal examination of the accused under Section 313 Cr. PC.
6. Mr. Bhattacharya has referred to a few decisions of Hon'ble Supreme Court as also of this Court to buttress his point that examination of the accused under Section 313 Cr. PC is a matter between the Court and the accused and even though an accused has been permitted to be represented by a pleader under Section 205 Cr. PC he has no right to ask the Magistrate to exempt from his personal examination under Section 313 Cr. PC and examination of the accused through pleader under Section 313 Cr. PC is not the spirit of the law. The decision in Basavaraj R. Patil and Ors. v. State of Karnataka and Ors. 2001 Criminal 40 has been relied on by both the parties. This is a three-Judge Bench decision where one of the Hon'ble Judges presented a dissenting judgment holding that the object of the section would be defeated if instead of the accused, his lawyer replied the question with his invented ingenuity. In this judgment there was reference to an earlier three-Judge Bench of the Hon'ble Supreme Court in Bibhuti Bhusan Das Gupta and Anr. v. State of West Bengal . In Bibhuti Bhusan Das Gupta case (supra) the Hon'ble Supreme Court held that a pleader cannot represent the accused for the purpose of Section 342 of the Code (now Section 313 of the Cr.PC.)
7. Mr. Shib Shankar Banerjee, learned Advocate for the petitioner referred to the decision in Shri Chandu Lal Chandraker v. Shri Puran Mal and Anr. 1988 Cal. Cri.L.R. (SC) 267. But the matter of the fact is that this is a judgment of two Hon'ble Judges of the Hon'ble Supreme Court and before this Bench the judgment of earlier three-Judge Bench in Bibhuti Bhusan Das Gupta (supra) was not placed and referred to. However, the decision in Basavaraj R. Patil case (supra) was distinguished in a subsequent two-Judge Bench decision of the Hon'ble Supreme Court in K. Anbazhagan v. Superintendent of Police and Ors. . Here, it was observed that the decision in Basavaraj R, Patil case (supra) was rendered in exceptional exigent circumstances because the accused was in a far away country in America and he had to incur a whooping expenditure and undertake tedious long journey solely for the purpose of answering the Court question and it is only in exceptional circumstances that the general rule can be departed from. In the case in K. Anbazhagan (supra) the respondent No. 2 was holding the position of Chief Minister of Tamil Nadu and she was available at Chennai and there was no exceptional exigency or circumstances such as her having to undertake a tedious long journey or incur a whooping expenditure to appear in Court to answer the questions under Section 313 Cr. PC.
8. Now, the question, therefore, is where in a summons procedure case the personal appearance of the accused has been dispensed with the accused can or cannot be permitted to be dispensed with his examination under Section 313 Cr. PC. Having regard to the proviso to Section 313(l)(b) Cr. PC the earliest three-Judge Bench decision in Bibhuti Bhusan Das Gupta case (supra) it has been observed, "It is from the scheme, purpose and language of Section 342 that we are driven to the conclusion that the examination under the section must be of the accused persons and not his pleader". Therefore, dispensing with personal appearance of the accused under Section 205 Cr.PC does not convey the message that examination of the accused under Section 313 Cr. PC has to be through pleader. As said above, the decision in Basavaraj R. Patil case (supra) one of the Hon'ble Judges relied upon another decision of the Hon'ble Supreme Court in Rama Shankar Singh and Ors. v. State of West Bengal , where it has been observed that "section 342 of the Code of Criminal Procedure by the first Sub-section provides, insofar as it is material: "For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court...shall...question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence." Duty is thereby imposed upon the Court to question the accused generally in a case after the witnesses for the prosecution have been examined to enable the accused to explain any circumstance appearing against him. This is a necessary corollary of the presumption of innocence on which our criminal jurisprudence is founded. The object of the section is to afford to the accused an opportunity of showing that the circumstances relied upon by the prosecution which may be prima facie against him, is not true or is consistent with his innocence. The opportunity must be real and adequate. Questions must be so framed as to give the accused clear notice of the circumstances relied upon by the prosecutions, and must give him an opportunity to render such explanation as he can of that circumstance. Each question must be so framed that the accused may be able to understand it and to appreciate what use the prosecution desires to make of the evidence against him. Examination of the accused under Section 342 is not intended to be an idle formality, it has to be carried out in the interest of justice and fair play to the accused: by a slipshod examination which is the result of imperfect appreciation of the evidence, idleness or negligence the position of the accused cannot be permitted to be made more difficult than what it is in a trial for an offence." Again under what circumstances Basavaraj R. Patil case (supra) departed from general principle has been explained in K. Anbazhagan (supra). The decision in Shri Chandu Lal Chandrakar (supra) case was a later two-Judge Bench decision where the earlier three-Judge Bench decision Bibhuti Bhusan Das Gupta case (supra) was not placed. Therefore, simply because the accused has been permitted to be represented by his pleader under Section 205 Cr. PC does not confer any jurisdiction upon the Magistrate to examine the accused through pleader. Either the Magistrate has to dispense with examination of the accused under Section 313 Cr. PC totally or to examine him under that section and there cannot be any other avenue mid way between the two. The decision in Sukhendu Dutta and Anr. v. State of West Bengal 2006(1) C Cr. LR (Cal.) 348 is exactly on identifical facts and circumstances. Here the accused was permitted to be represented by lawyer under Section 205 of the Cr. PC on condition that the accused shall appear as and when directed. It was not an unconditional order under Section 205 of the Code and in such circumstances the learned Magistrate rejected the prayer of the accused for examination under Section 313 Cr. PC through pleader. The Hon'ble Judge of this Court referred to the decision of Bibhuti Bhusan Das Gupta case (supra) (contrary to which no other decision of any larger Bench has been referred) and here it has been observed that where the offence is not a petty offence the examination under Section 313 Cr.PC was essential after closure of the evidence of the prosecution as the Court is expected to put questions to the accused from the incriminating materials and circumstances that transpired in evidence during trial and the accused is to give answer to the question of Court relating to the incriminating materials and circumstances. The case in the reported decision as above was also a case under Section 138 of Negotiable Instruments Act.
9. While exercising inherent jurisdiction of the Court under Section 482 of the Cr. PC. I find no illegality or impropriety in the order of the learned Additional Sessions Judge who in the criminal revision, rejected the motion thereby confirming the order of the learned Magistrate. The learned Magistrate while allowing the petition under Section 205 of Cr. PC put a condition that the accused shall appear before the Court as and when called for and so far as the examination of the accused was concerned the learned Magistrate specifically directed the accused to be personally present for examination. Why the learned Magistrate did not dispense with the examination of the accused under Section 313 Cr.PC having regard to the proviso to Section 313(1)(b) Cr.PC cannot be enquired here in this application. It is the judicial discretion of the learned Magistrate to dispense with altogether the examination of the accused under Section 313 Cr.PC but such examination is always to the benefit of the accused. Since what incriminating materials and evidence transpired against the accused in trial in this case is not known to this Court thus this Court cannot say sitting on an application under Section 482 Cr.PC that the Magistrate should have dispensed with examination of the accused under Section 313 Cr.PC altogether simply on the ground that personal appearance of the accused was dispensed with though after conclusion of recording of evidence.
10. Thus, having regard to all the facts and circumstances of the case and the legal position obtaining in the given situation I am of the considered opinion that the learned Additional Sessions Judge did not commit any illegality or impropriety in rejecting the revision while confirming the order of the learned Magistrate.
11. Therefore, the application is dismissed. The order of the learned Additional Sessions Judge dated 26.9.2006 is affirmed.
12. Let each copy of the judgment shall be sent to the learned Additional Sessions Judge, 7th Fast Track Court, Bichar Bhavan, Calcutta and learned Metropolitan Magistrate, 11th Court, Calcutta with reference to Case No. C-510 of 2003.
13. Criminal Section is directed to supply xerox certified copy of this judgment as early as possible.