Bombay High Court

Arvind Gupte vs The State Of Maharashtra on 31 October, 2023

Bench: S. V. Kotwal

2023:BHC-AS:32981



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                               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CRIMINAL APPELLATE JURISDICTION

                               CRIMINAL WRIT PETITION (ST) NO. 20258 OF 2023

                    Arvind Gupte                                                  ..Petitioner
                         Versus
                    The State of Maharashtra                                      ..Respondent

                                                 __________
                    Mr. Bhupesh Dhumatkar i/b. Ankita Phadke a/w. Rijul Khandare
                    and Rashika Srivastava for Petitioner.
                    Mr. Arfan Sait, APP for State/Respondent.
                                                 __________

                                                CORAM : SARANG V. KOTWAL, J.

DATE : 31 OCTOBER 2023 PC :

1. The Petitioner has challenged the order dated

26.09.2023 passed by the Chief Judicial Magistrate at Kolhapur. By

the impugned order, the learned Magistrate rejected the

application filed by the petitioner at Exhibit-206 in R.C.C.No.1096

of 2002 praying for exemption and for recording his statement

U/s.313 of the Cr.P.C. through his advocate.

2. The petitioner has also challenged the order dated

11.10.2023 passed below Exhibit-213 in the same proceedings,

thereby, a Non Bailable Warrant was issued against the petitioner.

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Vide application at Exhibit-213, the petitioner had prayed for

dispensing with recording of his statement U/s.313 of the Cr.P.C.

3. The Petitioner alongwith other accused are facing the

trial on the allegations of commission of offence U/s.18(c) of the

Drugs and Cosmetics Act 1940, punishable under Section 27(b)(ii)

of the said Act. The prosecution was launched in the year 1998.

The trial has proceeded and it is at the stage of recording of the

statement of accused U/s.313 of the Cr.P.C. At that stage, both

these applications referred to herein above were made; which

were rejected by the impugned orders.

4. Learned counsel for the petitioner submitted that the

petitioner is 90 years of age. He is suffering from various ailments.

He relied on the medical papers issued by the Lilavati Hospital.

The medical papers show that, he was admitted in the hospital on

02.06.2023 and was discharged on 09.06.2023. The diagnosis

mentioned in the medical papers are as follows:-

"Heart failure reduced ejection fraction+permanent pacemaker, implantation+diabetes mellitus + chronic renal failure + prostatomegaly.

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Audiometry: Bilateral moderate to severe SN hearing loss, USG-Abdomen + pelvis.

5. Though, it is also mentioned that, on discharge the

patient was hemodynamically stable and mobilized. But it is quite

clear that, he is suffering from serious ailments and he is at an

advanced age. Therefore, it is without doubt that the petitioner

will suffer extreme hardship if he is asked to travel from Mumbai

to Kolhapur where the case, at present, is pending against him.

6. In this background, the two aforesaid applications were

made on his behalf. By the first application, he had prayed for

exemption and for recording his statement through his advocate.

The learned Magistrate rejected that application. He observed that,

as per the provision, the accused was bound to attend the Court

for the statement. The Petitioner had relied on the Judgment of the

Hon'ble Supreme Court in the case of Basavaraj R. Patil and others

Versus State of Karnataka and others 1. However, the learned

Magistrate distinguished that case and observed that, said

Judgment was in respect of the case U/s.498-A of the I.P.C. The

1 (2000) 8 SCC 740

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learned Magistrate also doubted the medical certificate for its

genuineness. He further observed that the case was 22 years old.

He then rejected the said application.

7. The petitioner made another application at Exhibit-213

and mentioned that the statement U/s.313 of the Cr.P.C. be

dispensed with and he will have no grievance if the statement is

not recorded. Even that application was rejected and the Non

bailable warrant was issued against him.

8. Learned counsel for the petitioner relied on the same

case of Basavaraj Patil (supra) and submitted that the present case

also makes out an exceptional case where this court can follow the

same principles laid down in that case.

9. Learned APP opposed this prayer and relied on another

Judgment of the Hon'ble Supreme Court in the case of K.

Anbazhagan Versus Superintendent of Police and others 2. He

submitted that, in that case the Hon'ble Supreme Court had not

permitted recording of the statement U/s.313 of Cr.P.C. by

answering the questionnaire without making his physical 2 (2004) 3 Supreme Court Cases 767

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appearance in the Court.

10. I have considered these submissions. The Petitioner has

sworn an affidavit relying on the medical papers. There is no real

reason to doubt the authenticity or genuineness of those medical

papers. Those medical papers definitely show that, he is at an

advanced age and is suffering from ailments of his major organs.

Therefore, the submission made by learned counsel for the

petitioner that the journey from Mumbai to Kolhapur would be

extremely hard on his health needs to be accepted. It is quite

obvious that, it will have extremely adverse effect on the

petitioner's health to undertake that journey and remain present

before the Court for answering those questionnaire. The

observations of the Hon'ble Supreme Court in Basavaraj Patil's

case (supra) are important. In particular, paragraph Nos.24 to 27

are important; which read thus:

"24. We think that a pragmatic and humanistic approach is warranted in regard to such special exigencies. The word "shall" in Clause (b) to Section 313(1) of the Code is to be interpreted as obligatory on the Court and it should be complied with when it is for the benefit of the accused. But if it works to his great prejudice and disadvantage the Court should, in

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appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except 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 this could be achieved?

25. 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.

26. If the court is satisfied of the genuineness of the statements made by the accused in the said application and affidavit it is open to the court to supply the questionnaire to his advocate (containing the questions which the court might put to him under Section 313 of the Code) and fix the time within which the same has to be returned duly answered by the accused together with a properly authenticated affidavit that those answers were given by the accused himself. He should affix his signature on all the sheets

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of the answered questionnaire. However, if he does not wish to give any answer to any of the questions he is free to indicate that fact at the appropriate place in the questionnaire [as a matter of precaution the Court may keep photocopy or carbon copy of the questionnaire before it is supplied to the accused for answers]. If the accused fails to return the questionnaire duly answered as aforesaid within the time or extended time granted by the court, he shall forfeit his right to seek personal exemption from court during such questioning.

27. In our opinion, if the above course is adopted in exceptional exigency it would not violate the legislative intent envisaged in Section 313 of the Code."

11. In that case, the Hon'ble Supreme Court had given

relief to the accused who was from America and the hardship

caused to him was considered. It was a case U/s.498-A of the

I.P.C. and U/s.3 and 4 of the Dowry Prohibition Act. The

paragraphs referred to herein above mentioned that, on account

of justifying exigency the court can pass appropriate orders

thereon, provided such application is accompanied by an

affidavit sworn by the accused containing the narration of facts to

satisfy the court of his real difficulties in remaining physically

present and assurance and undertaking referred to in those

paragraphs. Once the Court is satisfied of the genuineness of the

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statements made by the petitioner, it is open to the Court to supply

the questionnaire to his advocate and fix the time within which the

same has to be returned duly answered with a properly

authenticated affidavit. The same course can be adopted in the

present case. Though, learned APP has referred to the Judgment of

K. Anbazhagan (supra), in that case the Hon'ble Supreme Court

considered the grounds raised by the accused in that case and the

Hon'ble Supreme Court came to the conclusion that, no

exceptional circumstance was made out. But in the present case,

the difficulty of the applicant is genuine and, therefore, the course

adopted by the Hon'ble Supreme Court in the case of Basavaraj

Patil (supra) can be followed in the interest of justice. This course

would not hamper smooth progress of the trial. At the same time,

it will not cause undue hardship to the present petitioner.

12. Considering this discussion, following order is passed:

ORDER

i) The order dated 26.09.2023 passed below Exhibit-206 in R.C.C.No.1096 of 2002 and the order dated 11.10.2023 passed below Exhibit-

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Judicial Magistrate at Kolhapur, are set aside.

ii) The Non Bailable Warrant issued against the petitioner is set aside.

iii) The learned Chief Judicial Magistrate, Kolhapur shall give the questionnaire to the learned Advocate for the petitioner. The questionnaire would be returned with necessary affidavit within a period of one month from receipt of the questionnaire.

iv) The learned Chief Judicial Magistrate, Kolhapur shall treat the answers to those questionnaire as the answers to the examination U/s.313 of the Cr.P.C.