PRITISH NANDY Vs. STATE OF ORISSA

JUDGEMENT

(1.) This petition u/s. 482, Cr. P.C. raises an important question regarding the true meaning of the proviso to S.313(1), Cr. P.C. as to whether while the Court exercises power thereunder to dispense with examination of the accused under S.313(1)(b), it is obligatory on its part to question the counsel representing the accused instead. The petitioners who are respectively the Editor and the Special Correspondent of the Illustrated Weekly of India are facing trial under S.292, I.P.C. for having published an article therein captioned "Shocking : The Strange Escapades Of J.B. Patnaik." In the trial Court the personal attendance of the petitioners was dispensed with under S.205, Cr. P.C. on their application. After the close of evidence of the prosecution, the case was posted to 15-2-89 for accused statement and defence evidence on which date an application was filed on behalf of the petitioners requesting adjournment. The application was allowed with the case posted to 3-3-89. On the date fixed, again a petition was filed on behalf of the petitioners stating that the petitioner No. 1 was busy in an important foreign assignment and the petitioner No. 2 was out of station in connection with some professional work and hence both of them were unable to appear in Court for the purpose of recording of their statement. The further ground for seeking adjournment was the illness of the principal counsel of the petitioners due to high fever. On the same day, an application was also filed by the Special Public Prosecutor to direct the petitioners to appear personally in Court for recording on their statements under S.313, Cr. P.C. Such application was obviously thought necessary because of the earlier order of the Court dispensing with the personal attendance of the petitioners. Considering the applications, the learned trial Court was of the view that the defence had already availed two adjournments covering one month for recording of the accused statement and defence evidence and that since it appeared from their petition that they remained busy in their professional works, no further adjournment was to be granted. He dispensed with examination of the accused persons in exercise of the powers under the proviso to S. 313(1), Cr. P.C. as they had been represented under S.205, Cr. P.C. from the very beginning. A consequential order was also passed, since the date had been fixed for examination of the accused as well as for defence evidence and the petitioners were not ready with their evidence, directing the case to be put up on 7-3-89 for arguments. It is such order of the Court which is under challenge in this petition.

(2.) Some facts which are also worthwhile noticing are that subsequent to the impugned order, a petition was filed on 7-3-89 in the trial Court on behalf of the petitioners seeking adjournment of the case on the ground of their senior counsel being seriously ill and also to challenge the order dt. 3-3-89 before this Court. The petition was rejected and the learned S.D.J.M. proceeded to hear the arguments in part and posted the matter to 15-3-89 for further arguments on which date a petition was again filed by the petitioners to recall the orders passed on 3-3-89 and 7-3-89 and to allow four weeks time to the petitioners to submit their list of defence witnesses. The Special Public Prosecutor agreed for grant of time to the petitioners to examine the defence witnesses, if any, in consideration of which fact the Court adjourned the case to 11-4-89 allowing the petitioners to examine defence witnesses on that date. The present Criminal Misc.Case was filed on 7-3-89 and on 6-4-89 orders were passed admitting the case and directing it to be put up for hearing on 11-4-89 as also granting interim stay of further proceedings in the trial Court.

(3.) Mr. P. Palit, the learned counsel for the petitioners, has urged the sole question that the power of the Court to dispense with examination of the accused under the proviso to S.313 (1), Cr. P.C. does not extend to do away with the examination of the accused absolutely, but in the context only means to allow the representing counsel of the accused to answer the questions on their behalf and such procedure having not been followed, the order of 3-3-89 has become vitiated. It is his submission that the order should be quashed allowing the representing counsel of the petitioners to make statements on their behalf and that they should be given opportunity to adduce defence evidence. Mr. I. Ray, the learned Addl. Govt. Advocate appearing for the State, has, on the contrary, contended that under the provisions of S.313, Cr. P.C., as was also the law under its predecessor Code, there is no scope for examination of the representing counsel in lieu of the accused and that even in the present petition, the petitioners have not made any such prayer. It is his further submission that the trial of this case has had a chequered career with the petitioners adopting various steps to prolong the trial and that the present move is one more such step. To scuttle any further move to delay the trial, he has come forward with the suggestion that he would have no objection if the petitioners are willing to make their statements under S.313, Cr. P.C. either themselves or through their counsel, but that a firm date should be fixed for the purpose so that the trial of the case is not held up merely for their statement to be recorded. He has also indicated no objection for examination of defence witnesses which fact he submitted also before the trial Court which passed orders permitting the petitioners to adduce evidence.