SHIRAS Vs. STATE OF KERALA

JUDGEMENT

(1.) In view of the order I propose to pass, notice to Respondent No. 2 is not necessary and is dispensed with.

(2.) Petitioner is accused in C.C. No. 372 of 2006 of the court of learned Judicial First Class Magistrate, Kunnamkulam for offence punishable under Section 138 of the Negotiable Instruments Act. He filed Annexure-A1, M.P. No. 8577 of 2010 for his examination under Section 313 of the Code of Criminal Procedure (for short, "the Code") through his counsel. That application was dismissed by the learned Magistrate vide Annexure-A2, order dated October 13, 2010 observing that Additional Sessions Judge, Thrissur (Fast Track-2) while allowing Crl. Appeal No. 331 of 2009 arising from the same case has directed examination of Petitioner under Section 313 of the Code and in view of the stand Petitioner took in the said appeal, request for examination through counsel cannot be allowed. That order is under challenge. Learned Counsel submitted that the discretion has not been properly exercised by the learned Magistrate in this regard.

(3.) Petitioner is working at Bombay. It is not disputed that he was granted exemption from personal appearance. He was convicted and sentenced against which he filed Crl. Appeal No. 331 of 2009. There, a contention was raised that he was not questioned under Section 313 of the Code. Accepting that contention the case was remitted to the trial court directing the latter to "examine the accused under Section 313 of the Code". I am unable to say that the said observation forestalled an application by the Petitioner for his examination under Section 313(i)(b) of the Code through counsel if otherwise he is entitled to that course. It is not as if Petitioner had contended in the appeal that examination through counsel was wrong. Instead, contention was that there was no examination under Section 313 of the Code.