Ram Pratap Barasia vs M/S Indo Rama Synthetics (India) ...
2009 Latest Caselaw 4433 Del

17.

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CRL.M.C. 3172/2009 and Crl.M.A. No. 10658/2009 (stay)

      RAM PRATAP BARASIA                        ..... Petitioner
                    Through: Mr. S.C. Aggarwala, Adv.
               versus

      M/S INDO RAMA SYNTHETICS (INDIA) LTD.           ..... Respondent
                     Through: None.

      CORAM:
      HON'BLE MR. JUSTICE V.K. JAIN

      1.    Whether the Reporters of local papers
            may be allowed to see the judgment?               Yes


      2.    To be referred to the Reporter or not?            Yes


      3.    Whether the judgment should be                    Yes
            reported in the Digest?

                 ORDER

%                03.11.2009

Judgment (ORAL)

This is a petition under Section 482 of the Code of Criminal

Procedure for quashing the complaint filed against him by the

respondent under Section 138 of Negotiable Instruments Act or to

allow his statement under Section 313 Cr.P.C. to be recorded through

his son and attorney Sh.Sushil Kumar Barasia.

2. It has been stated in para 7 of the petition that petitioner is aged

about 90 years is totally a blind person besides being a resident of

Calcutta, and therefore, is not in a position to attend the Court at Delhi. Medical papers of the petitioner have been filed as Annexure „B‟ to

the petition.

3. No one has appeared for the respondent despite service of notice

of the petition upon the respondent for 24 th September, 2009. The

notice bears the stamp of the respondent company besides signatures

of the receiving official dated 21 st September, 2009. Since the

respondent has not come forward to contest the petition, there is no

reason for not accepting the averments made in the petition.

4. In Chandu Lal Chandraker v. Puran Mal & Anr., 1988 (Supp) SCC

570, the Trial Court rejected the request of appellant/accused to record

his statement through his counsel. The order of the Trial Court was

challenged by him in the High Court. On rejection of his petition by the

High Court, he came to Supreme Court by way of a Special Leave. His

counsel before the Hon‟ble Supreme Court stated on instructions that

the appellant did not want to answer any of the questions which were

going to be put to him by the Trial Court under Section 313 Cr.P.C. and

further stated that he will not raise the question of prejudice, if any,

caused to him on account of his non-examination at subsequent stage

of the trial, in appeal or revision. In view of the statement, the Hon‟ble

Supreme Court set aside the order of the Trial Court directing personal

appearance of the appellant.

5. In Delhi Development Authority v. Amarjit Singh, 1985 Criminal

Law Journal 154, a Division Bench of this Court held that in an appropriate case, an accused, who has been exempted from personal

appearance, can be examined through his counsel.

6. In Basavaraj R. Patil and others v. State of Karnataka and others,

AIR 2000 Supreme Court 3214, the accused were facing trial for the

offences punishable under Sections 3 and 4 of Dowry Prohibition Act

and Section 498-A of Indian Penal Code. An application was filed by

their counsel in the Trial Court for dispensing with questioning of

accused No.1 and accused No. 4 on the ground that one was in

America and the other was a student studying in Gadag. On that

application, physical appearance of accused Nos. 1 and 4 was

dispensed with and their counsel was given opportunity to make

statements on their behalf. The prosecution resulted in acquittal of all

the accused. On a revision petition being filed before the High Court,

the learned Single Judge took the view that the Trial Court had no

discretion to dispense with the examination of the accused. The order

of acquittal was, therefore, set aside with the direction for fresh

decision after examination of those accused whose statements had not

been recorded. During the course of the decision, the Hon‟ble

Supreme Court inter alia observed as under:-

"21. However, if remaining present involves undue hardship and large expense, could the Court 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 registering further progress of their trial until their co-accused is able to attend the Court personally and answer the Court questions? Why should a criminal Court be rendered helpless in such a situation?

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 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 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."

7. Therefore, it cannot be said that in every case, it is obligatory for

the Court to procure personal appearance of the accused in the Court

to record his statement under Section 313 Cr.P.C. Let us take a

situation where the accused is totally immobile and is not in a position

even to move from his bed or a case where the physical condition of

the accused on account of some serious ailment is such that he cannot

personally be present except at the cost of endangering his life. Can it

be said that even in such a situation, the Court must insist upon

physical presence of the accused in the Court for recording his

statement? The answer obviously has to be in negative. The purpose of

recording statement of an accused is to draw his attention to every inculpatory material so as to enable him to explain it. The provision is,

therefore, mainly intended to benefit the accused though examination

of the accused also helps the Court in coming to a just and appropriate

conclusion. It is the accused who can complain of prejudice to him on

account of his having not been given an opportunity to explain the

circumstances that appear against him in evidence.

8. Therefore, in a given case if the accused himself comes to the

Court with a plea that insisting upon his personal presence would,

instead of being beneficial to him, was likely to result into his

disadvantage and causing serious hardship and inconvenience to him,

it is open to the Court, in an appropriate case, to evolve a methodology

which, while avoiding the inconvenience and prejudice that shall be

caused to the accused in attending the Court, would adequately serve

the purpose behind recording his statement under Section 313 Cr.P.C.

9. Since the petitioner is an old man, aged about 90 years, residing

in Calcutta and is stated to be bed ridden and totally blind, this is an

appropriate case where his statement under Section 313 Cr.P.C. should

be allowed to be recorded through his son and attorney Sh.Sushil

Kumar Barasia who also is a co-accused with him.

10. Though in case of Basavaraj R. Patil (supra), the Hon‟ble

Supreme Court did not direct recording of statement of accused

through his counsel or attorney and rather directed supply of

questionnaire to his Advocate for being answered by the accused, under his signature, it is not necessary to adopt the same course of

action in every case in which such a prayer is made by the accused.

The mechanism, to be evolved in a particular case, has to be decided

taking into consideration the facts of the case, including the nature of

the offences alleged to have been committed by the accused and the

circumstances which are preventing him from attending the Court

except at the cost of serious hardship and inconvenience to him. As

noted earlier, a Division Bench of this Court has already held that an

accused in a summons case, which has been exempted from personal

appearance, can be examined through his counsel. If the accused can

be examined through his counsel, there is no reason why he cannot be

allowed through his attorney, particularly when the attorney happens

to be his son and co-accused, who is fully posted with the facts of the

case.

11. Hence, it is directed that statement of petitioner under Section

313 Cr.P.C. shall be recorded through his son and attorney Sh.Sushil

Kumar Barasia subject to the conditions that (i) a Special Power of

Attorney shall be filed by the petitioner before the Trial Court stating

therein that his son and attorney Sh.Sushil Kumar Barasia is fully

posted with the facts relating to this complaint case, authorizing him to

answer questions on his behalf under Section 313 Cr.P.C. and agreeing

to remain bound by the answers given by his attorney on his behalf;

(ii) The petitioner shall file an undertaking stating therein that no prejudice would be caused to him in any manner by dispensing with his

personal appearance during questioning under Section 313 Cr.P.C. nor

would he raise any grievance on that account either before the Trial

Court or before a higher Court in any proceedings.

Crl. M.C. No. 3172/2009 and Crl.M.A.No.10658/2009 stand

disposed of.

V.K. JAIN, J

NOVEMBER 03, 2009 bg