CH NAJESWARI PATRA Vs. PRADIP KUMAR SARKAR

JUDGEMENT

(1.) PETITIONERS call in question legality of the order passed by the learned Judicial Magistrate, first class, Bhubaneswar (in short, 'JMFC') by which he rejected the prayer made by petitioners to dispense with their personal attendance and to record their statement through their counsel.

(2.) STAND of the petitioners in the present application is that they were permitted to be represented through counsel under Section 205 of the Code of Criminal Procedure, 1973 (in short, the 'Code'), and therefore, their statement in terms of Section 313 of the Code need not be recorded. In esssence, their stand is that since they were allowed to be represented under Section 205 of the Code, they can seek such exemption in terms of the proviso to Clause (b) of Sub -section (1) of Section 313 of the Code. The stand of the opp. party on the other hand is that such a prayer cannot be accepted.

(3.) AS observed by this Court in Ashok M. Jayari and Anr. v. Surajbhan Jain :(1995)8 OCR 280,the section is expressly designed to secure that the Court in the interest of strict justice should by the frame of its questions, perform a double duty, i.e., it should (i) communicate to the accused to full extent that may be found necessary in each particular case, what is alleged againt him in the evidence for the prosecution, and -(ii) ascertain from him what explanation or defence, in law or in fact, he wishes to put forward in respect thereof. It is intended not merely for the benefit of the accused. It is a part of the system for enabling the Court to discover the truth. The newly added proviso is in the nature of an exception to Clause (b) of Sub -section (1) of Section 313 of the Code. It applies only to summons cases. In such a case, if the Court has dispensed with the. personal attendance of the accused it would be open to the Court to dispense with the examination of the accused under Clause (b) of Sub -section (1) of Section 313. Incases where personal attendance of the accused has been dispensed with under Section 205(1), the Magistrate can dispense with the mandatory requirement of Clause (b) of Section 313 only in summons cases, that is the cases other than warrant cases. The mandate of Section 313(1)(b) demands, that the accused person, if not a company or other judicial person, must be personally examined to explain the incriminating circumstances appearing against him in prosecution evidence. This position has been elaborately stated by the apex Court in Usha K. Pillai v. Raj K. Srinivas and Ors. : (1993) 6 OCR (SC) 486 : AIR 1993 SC 2090. In the case at hand, learned SDJM does not appear to have kept the aforesaid principles in view. He is directed to consider the matter afresh, keeping them in view. The application is accordingly disposed of.