KEYA MUKHARJEE Vs. MAGMA LEASING LTD

JUDGEMENT

(1.) By this application under Section 401 read with Section 482 of the Cr.P.C. what is challenged is an order dated 26.09.2006 passed by the learned Additional Sessions Judge 7th Fast Track Court, Calcutta in Criminal Revision No. 36 of 2006 confirming thereby the order dated 2.2.2006 passed by the learned Metropolitan Magistrate, 11th Court Calcutta in case No. C-510 of 2003 wherein the learned Magistrate rejected the petitioner's prayer for dispensing with her examination under Section 313 Cr.P.C. by examination of the pleader who was to represent her under Section 205 of Cr.P.C.

(2.) It was a case under Section 138 of the N.I. Act. The petitioner appeared before the learned Magistrate on 2.6.2003 and was released on bail and then on 31.01.2004 she was examined under Section 251 Cr.P.C. On 3.7.2004 as she was absent warrant of arrest was issued against her but on 20.07.2004 she surrendered before the learned Magistrate and was released on bail. Then recording of evidence was completed, a date was fixed for her examination under Section 313 Cr.P.C. 5.5.2005 was the date fixed for examination of the accused under Section 313 Cr.P.C. but on that day she was absent by a petition supported by medical certificate and examination of the accused under Section 313 Cr.P.C. was adjourned to 12.05.2005. On 12.05.2005 the petitioner filed a petition under Section 313(l)(b) of Cr.P.C. Another petition filed by the petitioner on 23.08.2005 under Section 205 Cr.P.C. was also pending for disposal. Learned Magistrate allowed the petition on 2.2.2006 under Section 205 of Cr.P.C. subject to the condition that the petitioner should appear before the court as and when called for but rejected the petition under Section 313(l)(b) Cr.P.C. and the learned Magistrate fixed 6.3.2006 for examination of the accused under Section 313 Cr.P.C. and directed the petitioner to be personally present on that day. It is against this order of the learned Magistrate that a revisional application was moved before the learned Additional Sessions Judge, 7th Fast Track Court, Calcutta who confirmed the judgment and order of the learned Magistrate and dismissed the revisional application.

(3.) The learned Additional Sessions Judge observed that as per Section 313(l)(b) of the Cr.P.C. the court may dispense with examination under the Clause (b) where personal appearance of the accused has been dispensed with but the word 'may' indicates a mere distinction of the court which should be exercised judiciously where personal attendance has been dispensed with in the summons procedure case. Learned Additional Sessions Judge found that the accused did not take resort to Section 205 Cr.P.C. before the date was filed for examination of the accused under Section 313 Cr.P.C. and the learned Magistrate has not allowed any such petition at that stage and on the contrary it appears that it was only after fixing the case for examination of the accused under Section 313 Cr.P.C. that the accused/petitioner filed one petition under Section 313(l)(b) Cr.P.C. and then subsequent to this petition on another day she filed a petition under Section 205 Cr.P.C. and thus the lower court record did not suggest that at the earlier stage the lower court dispensed with the personal attendance of the accused under Section 205 Cr.P.C.