Bombay High Court
Arvind Gupte vs The State Of Maharashtra on 31 October, 2023
Author: Sarang V. Kotwal
Bench: Sarang V. Kotwal
2023:BHC-AS:32981
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION (ST) NO. 20258 OF 2023
Arvind Gupte ..Petitioner
Versus
The State of Maharashtra ..Respondent
__________
Mr. Bhupesh Dhumatkar i/b. Ankita Phadke a/w. Rijul Khandare
and Rashika Srivastava for Petitioner.
Mr. Arfan Sait, APP for State/Respondent.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 31 OCTOBER 2023
PC :
1. The Petitioner has challenged the order dated
26.09.2023 passed by the Chief Judicial Magistrate at Kolhapur. By
the impugned order, the learned Magistrate rejected the
application filed by the petitioner at Exhibit-206 in R.C.C.No.1096
of 2002 praying for exemption and for recording his statement
U/s.313 of the Cr.P.C. through his advocate.
2. The petitioner has also challenged the order dated
11.10.2023 passed below Exhibit-213 in the same proceedings,
thereby, a Non Bailable Warrant was issued against the petitioner.
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Vide application at Exhibit-213, the petitioner had prayed for
dispensing with recording of his statement U/s.313 of the Cr.P.C.
3. The Petitioner alongwith other accused are facing the
trial on the allegations of commission of offence U/s.18(c) of the
Drugs and Cosmetics Act 1940, punishable under Section 27(b)(ii)
of the said Act. The prosecution was launched in the year 1998.
The trial has proceeded and it is at the stage of recording of the
statement of accused U/s.313 of the Cr.P.C. At that stage, both
these applications referred to herein above were made; which
were rejected by the impugned orders.
4. Learned counsel for the petitioner submitted that the
petitioner is 90 years of age. He is suffering from various ailments.
He relied on the medical papers issued by the Lilavati Hospital.
The medical papers show that, he was admitted in the hospital on
02.06.2023 and was discharged on 09.06.2023. The diagnosis
mentioned in the medical papers are as follows:-
"Heart failure reduced ejection fraction+permanent
pacemaker, implantation+diabetes mellitus + chronic
renal failure + prostatomegaly.
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Audiometry: Bilateral moderate to severe SN hearing
loss, USG-Abdomen + pelvis.
5. Though, it is also mentioned that, on discharge the
patient was hemodynamically stable and mobilized. But it is quite
clear that, he is suffering from serious ailments and he is at an
advanced age. Therefore, it is without doubt that the petitioner
will suffer extreme hardship if he is asked to travel from Mumbai
to Kolhapur where the case, at present, is pending against him.
6. In this background, the two aforesaid applications were
made on his behalf. By the first application, he had prayed for
exemption and for recording his statement through his advocate.
The learned Magistrate rejected that application. He observed that,
as per the provision, the accused was bound to attend the Court
for the statement. The Petitioner had relied on the Judgment of the
Hon'ble Supreme Court in the case of Basavaraj R. Patil and others
Versus State of Karnataka and others 1. However, the learned
Magistrate distinguished that case and observed that, said
Judgment was in respect of the case U/s.498-A of the I.P.C. The
1 (2000) 8 SCC 740
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learned Magistrate also doubted the medical certificate for its
genuineness. He further observed that the case was 22 years old.
He then rejected the said application.
7. The petitioner made another application at Exhibit-213
and mentioned that the statement U/s.313 of the Cr.P.C. be
dispensed with and he will have no grievance if the statement is
not recorded. Even that application was rejected and the Non
bailable warrant was issued against him.
8. Learned counsel for the petitioner relied on the same
case of Basavaraj Patil (supra) and submitted that the present case
also makes out an exceptional case where this court can follow the
same principles laid down in that case.
9. Learned APP opposed this prayer and relied on another
Judgment of the Hon'ble Supreme Court in the case of K.
Anbazhagan Versus Superintendent of Police and others 2. He
submitted that, in that case the Hon'ble Supreme Court had not
permitted recording of the statement U/s.313 of Cr.P.C. by
answering the questionnaire without making his physical
2 (2004) 3 Supreme Court Cases 767
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appearance in the Court.
10. I have considered these submissions. The Petitioner has
sworn an affidavit relying on the medical papers. There is no real
reason to doubt the authenticity or genuineness of those medical
papers. Those medical papers definitely show that, he is at an
advanced age and is suffering from ailments of his major organs.
Therefore, the submission made by learned counsel for the
petitioner that the journey from Mumbai to Kolhapur would be
extremely hard on his health needs to be accepted. It is quite
obvious that, it will have extremely adverse effect on the
petitioner's health to undertake that journey and remain present
before the Court for answering those questionnaire. The
observations of the Hon'ble Supreme Court in Basavaraj Patil's
case (supra) are important. In particular, paragraph Nos.24 to 27
are important; which read thus:
"24. 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
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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 this could be
achieved?
25. 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.
26. 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 that those answers were given by the accused
himself. He should affix his signature on all the sheets
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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
answers]. 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.
27. 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."
11. In that case, the Hon'ble Supreme Court had given
relief to the accused who was from America and the hardship
caused to him was considered. It was a case U/s.498-A of the
I.P.C. and U/s.3 and 4 of the Dowry Prohibition Act. The
paragraphs referred to herein above mentioned that, on account
of justifying exigency the court can pass appropriate orders
thereon, provided such application is accompanied by an
affidavit sworn by the accused containing the narration of facts to
satisfy the court of his real difficulties in remaining physically
present and assurance and undertaking referred to in those
paragraphs. Once the Court is satisfied of the genuineness of the
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statements made by the petitioner, it is open to the Court to supply
the questionnaire to his advocate and fix the time within which the
same has to be returned duly answered with a properly
authenticated affidavit. The same course can be adopted in the
present case. Though, learned APP has referred to the Judgment of
K. Anbazhagan (supra), in that case the Hon'ble Supreme Court
considered the grounds raised by the accused in that case and the
Hon'ble Supreme Court came to the conclusion that, no
exceptional circumstance was made out. But in the present case,
the difficulty of the applicant is genuine and, therefore, the course
adopted by the Hon'ble Supreme Court in the case of Basavaraj
Patil (supra) can be followed in the interest of justice. This course
would not hamper smooth progress of the trial. At the same time,
it will not cause undue hardship to the present petitioner.
12. Considering this discussion, following order is passed:
ORDER
i) The order dated 26.09.2023 passed below Exhibit-206 in R.C.C.No.1096 of 2002 and the order dated 11.10.2023 passed below Exhibit-
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ii) The Non Bailable Warrant issued against the petitioner is set aside.
iii) The learned Chief Judicial Magistrate, Kolhapur shall give the questionnaire to the learned Advocate for the petitioner. The questionnaire would be returned with necessary affidavit within a period of one month from receipt of the questionnaire.
iv) The learned Chief Judicial Magistrate, Kolhapur shall treat the answers to those questionnaire as the answers to the examination U/s.313 of the Cr.P.C.
v) The case can then proceed on its own merit, in accordance with law, from that stage onwards.
vi) With this observation, the petition is disposed of.
(SARANG V. KOTWAL, J.) ::: Uploaded on - 01/11/2023 ::: Downloaded on - 02/11/2023 04:49:15 :::