LAWS(KER)-2005-6-109

PALAKKAPARAMBIL UMMAR Vs. STATE OF KERALA

Decided On June 30, 2005
Palakkaparambil Ummar Appellant
V/S
STATE OF KERALA Respondents

JUDGEMENT

(1.) The petitioner is the sole accused in C.C. No. 29/2000 on the file of the Judicial Magistrate of First Class, Parappanangadi. Admittedly, the petitioner is employed in Abu Dabi in the United Arab Emirates. The predicament of the petitioner is that he is unable to come down to his native village and participate in the trial. It is submitted at the Bar that the witnesses in the case have been examined and it is now posted for questioning of the petitioner under S.313 CrPC. Since the petitioner failed to appear to answer the questions under S.313 CrPC, the learned Magistrate has issued non bailable warrant against him. Learned counsel for the petitioner submits that in view of the dictum laid down by their Lordships of the Supreme Court in Basavaraj R. Patil and others v. State of Karnataka and others ( AIR 2000 SC 3214 ) it is always open to the Trial Court to allow the accused to answer questions under S.313 CrPC. through his counsel after complying with the procedural formalities indicated by the apex court. It is brought to my notice that the petitioner had in fact sworn to an affidavit which was attested before the Attache (Consular) of Indian Embassy at Abu Dhabi. In the said affidavit, the petitioner has unequivocally undertaken that he would not raise any dispute with regard to his identity before the Trial Court or any other court. He has also asserted that he would not raise any question of prejudice before any court regarding the submissions or answers given by his counsel. It is also averred in the affidavit that all the answers given by his counsel would be binding on him. A true photo copy of the affidavit which was filed before the Trial Court has been produced Annexure A. Learned counsel submits that in view of the unequivocal undertaking of the petitioner in the affidavit, it would have been appropriate and just if the learned Magistrate did not insist for the personal appearance of the accused to answer the questions.

(2.) In Shaji v. State of Kerala ( ILR 2005 (2) Ker. 530 ), I had occasion to deal with an almost identical situation. After referring to Basavaraj's case it has been held in the above case that the accused need not invariably be present in court to answer the questions under S.313 CrPC. If the situation warranted that his presence should be avoided and if there is an undertaking by the accused that he would not raise any question of prejudice if the answers are given by his counsel on his behalf, the court can allow the accused to answer the questions through his counsel. The decision of their Lordships of the Supreme Court in Chandu Lal Chandraker v. Puran Mat and another (1988 Suppl. SCC 570) was also referred to in Shaji's case. In view of the dictum laid down by their Lordships in Basavaraj's case and Chandu Lal's case, I am of the view that the petitioner can be allowed to answer the questions through his counsel especially in view of Annexure A affidavit which is stated to have been filed before the learned Magistrate.

(3.) Therefore, the learned Magistrate is directed to proceed with the case and complete the questioning of the petitioner in terms of the directions issued by the Supreme Court in Basavaraj and Chandu Lal Chandraker. The non bailable warrant issued against the petitioner shall be withdrawn.