Keya
Mukherjee Vs. Magma Leasing Limited & ANR [2008] INSC 597 (8 April 2008)
Dr. ARIJIT PASAYAT & P. SATHASIVAM
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 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.(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 (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.
(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 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)
"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 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 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 narration of facts to satisfy the
court of his real difficulties to be physically present in court for giving such
answers.
-
An assurance that no prejudice would
be caused to him, in any manner, by dispensing with his personal presence during
such questioning.
-
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 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.
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