NOUFAL Vs. SUB INSPECTOR OF POLICE

JUDGEMENT

(1.) The petitioner, who is the accused in C.C. No. 664/2010 on the file of the Court of Judicial First Class Magistrate-III, Kozhikode, has approached this Court by instituting the above said Criminal Revision Case (Crl. M.C.) filed under Section 482 Cr.P.C. invoking the inherent powers of this Court, praying that the aforementioned Magistrate Court may be directed to waive the personal presence of the petitioner during the questioning under Section 313 of the Cr.P.C. and permit the counsel appearing for the petitioner to answer the questions that would be put during the questioning under Section 313 of the Cr.P.C., in writing. C.C. No. 664/2010 aries out of crime No. 106/2007 of the Kakoor Police Station, Kozhikode district for offences registered under Sections 509 and 294(b) of the IPC, with the allegation that the accused has pasted posters containing obscene contents regarding the defacto complainant as the marriage between the defacto complainant and the petitioner did not take place. The petitioner was granted bail in the above said case. As per Annexure A1 order dated 16.7.2014 rendered by this Court in Crl. M.C. No. 2700/2010, this Court had permitted the petitioner to file an application under Section 205 of Cr.P.C., for personal exemption during the recording of the evidence and further directed that the learned Magistrate shall not insist upon the personal appearance of the petitioner for filing or hearing of the said petition. Accordingly, the learned Magistrate allowed the prayer in the petition filed by the petitioner herein pursuant to Annexure A1 order and permitted him to be represented by a counsel. Now the prosecution evidence in the above case is over and the case is posted for questioning of the accused under Section 313 of the Cr.P.C. The petitioner avers that he is still working abroad and that his employer has not given leave and that the petitioner is thus unable to appear in person during the questioning under Section 313 of the Cr.P.C. and the petitioner has already instructed and authorised his counsel to answer the questions that may be put during the questioning under Section 313 Cr.P.C. in writing. It is submitted by the petitioner that his presence during the questioning under Section 313 Cr.P.C. is not required as he is personally represented by a lawyer during the recording of the evidence and the counsel is capable of giving cogent answers to the questions that would be put as part of the process envisaged under Section 313 Cr.P.C. It is in the context of these facts and circumstances that the petitioner has filed the aforementioned Crl. M.C. with the above said prayers.

(2.) Heard Sri. Sunny Mathew, the learned counsel for the petitioner and the learned Public Prosecutor.

(3.) In the case between Basav Raj R. Patil v. Karnataka, 2000 8 SCC 740, the Apex Court through its majority in a three Judge Bench, held that a pragmatic and humanistic approach is warranted in regard to special exigencies and that the word, 'shall' appearing in Section 313(1)(b) 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, if the accused satisfies the Court that he is unable 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 other hardship, relieve him of such hardship and at the same time adopt a measure to comply with the requirements in S. 313 of Cr.P.C. in a substantial manner. Accordingly, it is held by the Supreme Court that 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.