TMI Blog2008 (4) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... politan Magistrate 11th Court, Calcutta in Case No. C-510 of 2003 was upheld. Learned Magistrate has rejected the appellant's prayer for dispensing with her examination under Section 313 Cr.P.C. by examining of the pleader who was to represent her under Section 205 Cr.P.C. The proceeding was one under Section 138 of the Negotiable Instruments Act, 1881 (in short the 'N I Act'). Appellant appeared before learned Magistrate on 2.6.2003 and was released on bail. On 31.1.2004 she was examined under Section 251 Cr.P.C. Since she was absent on 3.7.2004, warrant of arrest was issued against her but on 20.7.2004 she surrendered before learned Magistrate and was released on bail. Recording of evidence was completed and 5th May, 2005 was fixed for her examination under Section 313 Cr.P.C. But on that date she was absent and a prayer was made for adjournment. The date was adjourned to 12.5.2005. On that date appellant filed a petition purported to be under Section 313 (1)(b) of Cr.P.C. Another petition was filed on 23.8.2005 under Section 205 Cr.P.C. Learned Magistrate allowed the petition filed under Section 205 Cr.P.C. on 2.2.2006 subject to the condition that the appellant shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the court (a) may at any stage, without previously warning the accused, put such questions to him as the court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons case, where the court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b). (2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. 10. The forerunner of the said provision in the Old Code was Section 342 therein. It was worded thus: 342. (1) For the purpose of enablin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the charges against the accused, but in so answering the charges, he cannot do what only the accused can do personally. The pleader may be permitted to represent the accused while the prosecution evidence is being taken. But at the close of the prosecution evidence the accused must be questioned and his pleader cannot be examined in his place. 14. The Law Commission in its 41st Report considered the aforesaid decisions and also various other points of view highlighted by legal men and then made the report after reaching the conclusion that: (i) in summons cases where the personal attendance of the accused has been dispensed with, either under Section 205 or under Section 540-A, the court should have a power to dispense with his examination; and (ii) in other cases, even where his personal attendance has been dispensed with, the accused should be examined personally. 15. The said recommendation has been followed up by Parliament and Section 313 of the Code, as is presently worded, is the result of it. It would appear prima facie that the court has discretion to dispense with the physical presence of an accused during such questioning only in summons cases and in all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion evidence. Learned Judges in that case were considering the fallout of omission to put to the accused a question on a vital circumstance appearing against him in the prosecution evidence. The three-Judge Bench made the following observations therein: (SCC p. 806, para 16) It is trite law, nevertheless fundamental, that the prisoner's attention should be drawn to every inculpatory material so as to enable him to explain it. This is the basic fairness of a criminal trial and failures in this area may gravely imperil the validity of the trial itself, if consequential miscarriage of justice has flowed. However, where such an omission has occurred it does not ipso facto vitiate the proceedings and prejudice occasioned by such defect must be established by the accused. In the event of evidentiary material not being put to the accused, the court must ordinarily eschew such material from consideration. It is also open to the appellate court to call upon the counsel for the accused to show what explanation the accused has as regards the circumstances established against him but not put to him and if the accused is unable to offer the appellate court any plausible or reasonable expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. 22. But the situation to be considered now is whether, with the revolutionary change in technology of communication and transmission and the marked improvement in facilities for legal aid in the country, is it necessary that in all cases the accused must answer by personally remaining present in court. We clarify that this is the requirement and would be the general rule. However, if remaining present involves undue hardship and large expense, could the court not alleviate the difficulties. If the court holds the view that the situation in which he made such a plea is genuine, should the court say that he has no escape but he must undergo all the tribulations and hardships and answer such questions personally presenting himself in court. If there are other accused in the same case, and the court has already completed their questioning, should they too wait for long without their case reaching finality, or without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcept by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. How could this be achieved? 26. If the accused (who is already exempted from personally appearing in the court) makes an application to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit sworn to by the accused himself containing the following matters: (a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers. (b) An assurance that no prejudice would be caused to him, in any manner, by dispensing with his personal presence during such questioning. (c) An undertaking that he would not raise any grievance on that score at any stage of the case. 27. If the court is satisfied of the genuineness of the statements made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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