SACHCHIDA NAND Vs. POORAN MAL

JUDGEMENT

(1.) An important question of law has been raised in these misc. petitions under Section 482, Cr. P.C. and that is where in a summons case if the court has dispensed with the personal attendance of the accused under Section 205 or 317, Cr. P.C., whether it is must that the accused should be personally examined to explain the circumstances appearing in the evidence against him?

(2.) The contention of the learned counsel for the accused-petitioners in these two misc. petitions is that in view of introduction of the proviso to sub-section (i) of Section 313 Code of Criminal Procedure, 1973 (New Code) the law laid down by the Supreme Court in the case of Bibhuti Bhusan Das Gupta v. State of West Bengal AIR 1969 SC 381, does not hold the field, and if the accused applies even at the stage of his examination under Section 313 of the New Code, to dispense with his examination under clause (b) of sub-section (1) of Section 313 of the New Code, then the court has no option but to allow the request of the accused and dispense with the examination. It is further contended that if the court does not dispense with the examination of the accused under clause (b) of sub-section (1) of Section 313 of the New Code, then the counsel for the accused, through whom the presence of the accused was dispensed with earlier, can be examined. In support of his submission learned counsel placed reliance on Smt. Angelica Ferrao v. The State, 1979 0 CrLJ 8 (Goa)), and in the case of Delhi Development Authority v. Amarjit Singh, 1985 0 CrLJ 154 (Delhi). Mr. Rathore, learned counsel appearing for the non-petitioners opposing the two misc. petitions on the other hand contended that the court has no doubt discretion to dispense with the examination of the accused under sub-section (1)(b) of Section 313 of the New Code but the court cannot examine the counsel of the accused through whom the presence of the accused had been dispensed with. He further contends that in the present case though the impugned order of the learned Magistrate is under subsection (1)(a) of Section 313, Cr. P.C. and the learned Magistrate has given reasons as to why the accused persons should be personally examined under section 313 Cr.P.C, and the proviso to sub-section (1) of Section 313 of the New Code will only apply to a case falling under clause (b) of sub-section (1) of Section 313 of the New Code and not to clause (a) of sub-section (1) of Section 313 thereof. In support of this contention that the introduction of the proviso to sub-section (1) of Section 313 of the New Code has not made any difference to the law laid down by their Lordships of the Supreme Court in the case of Bibhuti Bhushan Das Gupta (supra), learned counsel submits that this court in the case of Mst. Kesar v. State of Rajasthan, 1975 0 RajLW 72 took a view that the Magistrate may desire presence of the accused at any stage and plea that the accused do not want to answer the question is no ground for exempting with the presence of the accused I will deal with the case law at the latter stage but at this stage I would like to say that the case of Mst. Kesar (supra) is under Sec. 342 of the Code of Criminal Procedure, 1898 (Old Code).

(3.) The accused petitioners are facing trial for offences under Section 511, IPC in the court of Munsiff and Judicial Magistrate, Khetri since 1979. The offence is a summons case and is triable by a Magistrate. The two accused-petitioners were exempted under Section 317, Cr. P.C. from personal attendance and were allowed to be represented by the counsel. The case,relates to a news item published in Hindustan, a daily Hindi news-paper from Delhi dated March 17, 1978. The news item related to some Junior Mehmood night which was held on Feb. 26, 1978 in Deen Bandhu Talkies of which the complainant is proprietor and owner. The news item related to an incident which is said to have taken place in the night where the women and girls are said to have been molested and raped. Learned Magistrate took cognizance of offence against the accused in the complaint filed before him for offence under Sec. 500, IPC. The presence of the accused was exempted and they were allowed to be represented through their counsel. The evidence for the prosecution concluded and the stage of examination of the accused under Section 313, Cr. P.C. came. At that point of time an oral prayer was made on behalf of the accused-petitioners that the case is a summons case and personal attendance of the accused has been dispensed with and therefore the court may also dispense with their examination under sec.313(1)(b) of the New Code and if it may be thought necessary to examine the accused, then the statements of their counsel should be recorded under Section 313, Cr. P.C. The learned Magistrate in the impugned order did not accept any prayer and ordered that the accused-persons should appear personally for their examination under Section 313, Cr.P.C. The learned Magistrate in his impugned order gave reasons why he considered the presence of the accused-persons necessary for their examination under Section 313, Cr. P.C.