SUSAN DAS Vs. HEMLATA DAS

JUDGEMENT

(1.) THIS revision petition arises from the order of the Judicial Magistrate of the first class Sibsagar made on 28 -4 -1989 in C.R. Case No. 779 of 1980 rejecting die prayer of the petitioners Smt. Sarbeswari Das and Smt. Minu Das for dispensing with their examination under Section 313(1)(b) of the Criminal Procedure Code in view of Proviso to sub -section (1) of Section 313 of the Criminal Procedure Code on the ground that the accusation against them is under Section 313 of the Indian Penal Code which is a summons -case, and that the Court bas dispensed with their personal attendance. It is stated in their application for exemption from examination that the petitioner Sarbeswari Das is an ailing woman and the petitioner Minu Das is living with her - husband in an interior village in Hojai, District Nagaon. The Magistrate rejected the prayer mainly on the ground that the case was not tried in accordance with the procedure for the trial of summons -case, that is, the trial was not under Chapter -XX of the Code of Criminal Procedure.

(2.) THE learned Counsel for the petitioners has submitted that the offence under Section 323 of the Indian Penal Code is punishable with imprisonment not exceeding one year and, therefore, it is a summons -case. The Court also has dispensed with the personal attendance of the petitioners. Proviso to sub -section (1) of Section 313 of the Criminal Procedure Code does not relate to the procedure for the trial but it refers to the offence.

(3.) THE next question which arises for consideration is whether in a summons -case where the Court has dispensed with the personal attendance of the accused, the examination of the accused can be dispensed with under Proviso to Section 313(1), Criminal Procedure Code on the facts and circumstances of the case. The object of Section 313 is to enable the accused to explain any circumstances appearing against him in the evidence. It is in the interest of justice and to enable the Court to decide the question of guilt of the accused. The examination of the accused under Section 313 of the Criminal Procedure Code is an important one. Answers given by the accused can be used both in his favour or against him, as provided under Section 313(4) of the Criminal Procedure Code. If the petitioners do not like to answer the question and or to avail themselves of the opportunity under Section 313 of the Criminal Procedure Code, it is at their own risk. It may - also be noted that the accused -petitioners cannot be punished for refusing to answer the question as is provided under Section 313(3) of the Criminal Procedure Code. However, the Proviso makes the intention of the legislators clear that where the Court has dispensed with the personal attendance of the accused in a summons -case, their examination under Clause (b) of Section 313(1) may be dispensed with. Considering the facts and circumstances of the case, the impugned order is set aside, and if the appearance of the petitioners Smt. Sarbeswari Das and Smt. Minu Das are still under exemption, their examination under Section 313(b) may be dispensed with.