RAMACAST LIMITED Vs. REGISTRAR OF COMPANIES

JUDGEMENT

(1.) This application is directed against order dated 25/7/85 passed by the learned Metropolitan Magistrate Calcutta, 11th Court, in Case No. C/334 of 1984 under section 162 of the Companies Act, 1956. By the impugned order the learned Magistrate deal with an application filed by the accused petitioner exempting him from re-examination under section 313 of the Criminal Procedure Code. The learned Magistrate observed that there were some incriminating evidence on record against the accused persons and as such, the personal attendance and the examination of the accused under section 313 Cr. P.C. cannot be dispensed with for all practicable purposes. Accordingly, he rejected the said application and directed issue of a warrant of arrest against the petitioners. The petitioners were being represented in the case by a learned Advocate under sections 205 and 305 of the Cr. P.C.

(2.) Section 313 Cr. P.C. gives power to the Court to examine .an accused. For our purposes the provisions of section 313 (b) is necessary. It empowers the Court after the witnesses for the prosecution have been examined and before the accused is called on to enter his defence, the Court will question him generally in the case. In the Criminal Procedure Code of 1973 a proviso has been added to this clause which lays down 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 section 313 (b) of the Criminal Procedure Code. I have also noted that clause (b) applies in this case. Therefore, the learned Magistrate has jurisdiction to pass an order in favour of the accused person on the petition they had filed. Only it was indicated by the learned Magistrate that since there are incriminating materials appearing in the evidence against the accused, his personal attendance cannot be exempted, does not appear to be sound. There must be incriminating evidence against the accused persons which have to be put for explanation of the accused while examining the accused under section 313. If there is no incriminating evidence, there is nothing left to be put in his examination under section 313 Cr. P.C. The learned Magistrate has to decide on the facts of the case whether the exemption prayed for can be granted. On the facts of this case, the only evidence that might be adduced by the prosecution is if returns are filed in time and in such case personal explanation from the accused is not necessary, particularly in view of the fact that personal attendance has already been exempted on good grounds. The learned Magistrate failed to exercise his jurisdiction in accordance with law. Accordingly, the impugned order is set aside. The learned Magistrate is directed to allow the Application filed by the petitioner for exempting them from being examined under section 313 Cr. P.C.

(3.) This application is accordingly disposed of.