United Phosphorus Ltd. vs Sunita Narain & Anr
2011 Latest Caselaw 1480 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


+                   CRL. M.C. 2116/2010

%                                          Reserved on: 24th February, 2011

                                           Decided on: 15th March, 2011

UNITED PHOSPHORUS LTD.                                         ..... Petitioner
                      Through:               Mr. Rajeev K. Virmani, Sr.
                                             Advocate with Mr. Rajeev M.
                                             Roy & Ms. Monika Hooda,
                                             Advocates
                    versus

SUNITA NARAIN & ANR                                         ..... Respondents
                                Through:     Mr. Raghenth Basant, Advocate
                                             Mr. Pawan Bahl, APP for the
                                             State.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may       Not Necessary
   be allowed to see the judgment?

2. To be referred to Reporter or not?              Yes

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

MUKTA GUPTA, J.

1. A complaint was filed by the Petitioner against the Respondent Nos. 1

and 2 and two others inter alia alleging false and defamatory imputation made

and published intentionally to harm the reputation of the Petitioner. On the

said criminal Complaint No. 1811/1996, the learned trial court took

cognizance and exempted the Respondent No.1 from personal appearance

during the trial. When the matter was fixed for examination of the

Respondent No.1, an application was filed by her for exemption from personal

appearance for the purpose of examination under Section 313 Cr.P.C. and

allowing her examination under Section 313 Cr.P.C. in writing in response to

a questionnaire provided by the Hon‟ble Court. By the said application, the

Applicant/Respondent No.1 had stated that she was a Director of the

Respondent No.2 and the publisher of a fortnightly magazine namely "Down

to Earth" an active participant, nationally and internationally, in civil society

through her work due to which she has extensive time consuming professional

commitments and that no prejudice would be caused to the Applicant by

dispensing with her personal appearance before the Hon‟ble Court for the

purpose of examination and that she undertakes that she would not raise any

grievance at any stage of the case in relation to the examination procedure

prayed for. On the said application, the learned trial court passed the

impugned order dated 3rd June, 2010 exempting the Respondent No.1 from

personal appearance before the Court and permitting the filing of written

statement by her in terms of sub-Section (5) of Section 313 Cr.P.C. as

sufficient compliance of Section 313 Cr.P.C.

2. The grievance of the Petitioner/Complainant is that the Respondent

No.1 cannot be granted exemption from personal appearance for recording of

her statement under Section 313 Cr.P.C. merely on the ground that she is a

high-profile social activist and is busy in her commitments. The learned trial

court failed to exercise judicious discretion and granted her exemption from

personal appearance as a matter of routine. Moreover, the exemption granted

was not for the entire trial as the order clearly granted exemption to the

Respondent No.1 from personal appearance till further orders. The exemption

from personal appearance granted during the trial does not permit the Court to

ipso facto grant exemption from appearance for recording of the statement

under Section 313(1)(b) Cr.P.C. While exercising the discretion, the Court

ought to have spelt out the reasons for exercise of the said discretion even

though the conditions precedent as envisaged in the said Section were not

satisfied. By this method, the explanation given by Respondent No.1 would

have evolved out of legal advice and would be thus prejudicial to the

Petitioner. The learned trial Judge has proceeded on the premise that in view

of Section 313(5) Cr.P.C., he was obliged to permit the exemption of

Respondent No.1 from personal appearance. This interpretation adhered to by

the learned trial court for Section 313(5) Cr.P.C. is impermissible. As per the

learned trial court‟s interpretation, once the proviso to Section 313(1)(b)

comes into play, then sub-Section (5) also comes into play. The interpretation

rendered by the learned trial court to sub-Section (5) has rendered the word

„shall‟ in Section 313(1)(b) otiose. Reliance is placed on Keya Mukheree vs.

Magma Leasing Limited & Anr., 2008(8) SCC 447, to contend that only in

cases of undue hardships and involving large expense, the Court can permit

examination by way of written statement to alleviate the difficulties of the

accused. The justifying exigencies have been duly described by the Hon‟ble

Supreme Court and the case of the Petitioner does not fall within the said

ambit. It is, thus, prayed that the impugned order be set aside.

3. Learned counsel for the Respondent on the contrary contends that at the

stage of examination of the accused under Section 313 Cr.P.C., the issue is

between the Court and the accused. The present petition is filed by the

Complainant who has no locus standi as no prejudice is caused to him if the

explanation of the Respondent is given by way of a written statement. By this

way if at all any right is affected, it is the right of the Respondent as an

accused and prejudice, if any, is caused to the Respondent. No right of the

Complainant is prejudiced. The contentions raised and the grounds urged by

the Petitioner are contrary to the provision of Section 313(5) Cr.P.C. and by

this petition, the Petitioner actually lays a challenge to the vires of Section

313(5) Cr.P.C. which is not permissible in the present petition. Sub-Section

(5) to Section 313 Cr.P.C. was introduced by way of an amendment with

effect from 31st December, 2009. This provision was introduced to obviate

any hardship faced by the accused. The Hon‟ble Supreme Court in Basavaraj

R.Patil & Ors vs. State of Karnataka & Ors., 2000 (8) SCC 740 recognized

and accepted the hardship caused to the accused which has been followed in

Keya Mukherjee (supra). It is stated that by introducing Sub-Section (5) of

Section 313 Cr.P.C. the legislature has given statutory recognition to the right

of the accused to give explanation by a written statement. Sub-Section (5) to

Section 313 Cr.P.C. is not limited in its application to proviso to 313(1)(b)

Cr.P.C. In the application filed, the Respondent/Applicant had complied with

the mandate of the Hon‟ble Supreme Court laid down in Basavaraj R. Patil &

Ors (supra). If the contention of the Petitioner is to be accepted then the very

intention and purpose of introducing sub-Section (5) to Section 313 Cr.P.C by

way of an amendment is negated. Even before the amendment, the Hon‟ble

Supreme Court in Basavaraj R. Patil (supra) has held that a humanistic

approach should be followed. The fundamental objection of the Petitioner to

allow the Respondent/accused to file a written statement is misconceived as

the same was permitted even before the amendment by virtue of Sections

233(2) and 243(1) Cr.P.C. Once the Respondent/Applicant has given an

undertaking that it would not raise any plea of prejudice by this method, no

prejudice is caused to the Petitioner/Complainant and thus, the interference

under Section 482 Cr.P.C. by this Court is unwarranted.

4. I have heard learned counsels for the parties. Section 313 Cr.P.C.

provides: -

"Power to examine the accused - (i) In every inquiry or trial, for the 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 summon-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause(b) (2)..........................

(3).........................

(4).........................

(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this Section".

5. Sub-Section (5) was introduced in Section 313 Cr.P.C. by Code of

Criminal Procedure(Amendment) Act,2008 with effect from 31st December,

2009. The purpose behind the said amendment was to give statutory

recognition to the procedure facilitating the examination of the accused. The

Law Commission in its 154th report in 1996 while evaluating the purpose of

Section 313 of the Code reiterated the need for this provision as a valuable

safeguard to the accused in the trial processes and observed:

"We are of the view that the Court can take the assistance of the prosecutor and defence counsel and prepare the questions which are to be put in a concise form to the accused under Section 313. The Court can also permit the filing of the written statements by the accused as sufficient compliance with Section 313.

6. This statutory recognition of the accused to file a written statement has

also been provided for in warrant cases in Sections 233(2) and 243(1) Cr.P.C.,

which read as under:

233. "Entering upon defence: (2) If the accused puts n any written statement, the Judge shall file it with the record".

243. Evidence for defence: (1) The accused shall then be called upon to enter upon his defence and produce his evidence; and if the accused puts in any written statement, the Magistrate shall file it with the record.

7. In Basavaraj R. Patil(supra) followed in Keya Mukharjee(supra)the

hon‟ble Supreme Court held:

"17. The above approach shows that some dilution of the rigour of the provision can be made even in the light of a contention raised

by the accused that non-questioning him on a vital circumstance by the trial court has caused prejudice to him. The explanation offered by the counsel of the accused at the appellate stage was held to be a sufficient substitute for the answers given by the accused himself.

18. What is the object of examination of an accused under Section 313 of the Code? The section itself declares the object in explicit language that it is "for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him". In Jai Dev v. State of Punjab MANU/SC/0134/1962 : [1963]3SCR489 Gajendragadkar, J. (as he then was) speaking for a three-Judge Bench has focussed on the ultimate test in determining whether the provision has been fairly complied with. He observed thus:

"The ultimate test in determining whether or not the accused has been fairly examined under Section 342 would be to inquire whether, having regard to all the questions put to him, he did get an opportunity to say what he wanted to say in respect of prosecution case against him. If it appears that the examination of the accused person was defective and thereby a prejudice has been caused to him, that would no doubt be a serious infirmity.

19. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion.

20. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram partem. The word "may" in Clause (a) of Sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to put the needed question under Clause (b) of the sub-section it would result in 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.

21. 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 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?

22. The one category of offences which is specifically exempted from the rigour of Section 313(1)(b) of the Code is "summons cases". It must be remembered that every case in which the offence triable is punishable with imprisonment for a term not exceeding two years is a "summons case". Thus, all other offences generally belong to a different category altogether among which are included offences punishable with varying sentences from imprisonment for three years up to imprisonment for life and even right up to death penalty. Hence there are several offences in that category which are far less serious in gravity compared with grave and very grave offences. Even in cases involving less serious offences, can not the court extend a helping hand to an accused who is placed in a predicament deserving such a help?

23. Section 243(1) of the Code enables the accused, who is involved in the trial of warrant case instituted on police report, to put in any written statement. When any such statement is filed the

court is obliged to make it part of the record of the case. Even if such case is not instituted on police report the accused has the same right (vide Section 247). Even the accused involved in offences exclusively triable by the Court of Session can also exercise such a right to put in written statements (Section 233(2) of the Code). It is common knowledge that most of such written statements, if not all, are prepared by the counsel of the accused. If such written statements can be treated as statements directly emanating from the accused, hook, line and sinker, why not the answers given by him in the manner set out hereinafter, in special contingencies, be afforded the same worth.

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 could this 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 an answer.) 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.

8. In the complaint filed by the Petitioner, the Respondents are facing trial

for offences punishable under Section 500, 501 and 502 IPC which are

summons trial cases. As per the proviso to sub-Section (1) of Section 313

CPC, 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). It would be highly irrational to hold that in a summons case on one

hand the Magistrate has the power even to dispense with the statement under

Section 313 Cr.P.C. and on the other the statement can only be recorded only

if the accused is personally present. In Basavaraj R.Patil(supra) the Hon‟ble

Supreme Court was dealing with a warrants case trial in which the objection

of the Complainant to the exemption of the accused for personal presence for

examination under Section 313 of the Code through the Advocate was upheld

by the High Court in an appeal against acquittal. Their Lordships while

dealing with the issue held that no criminal court can be rendered absolutely

powerless to deal with a situation like this i.e. if the accused is in a far away

country and has to incur whopping expenditure and undertake a tedious long

journey for answering the Court question, he can be allowed to answer the

question through the counsel. The exigencies noted by their Lordships could

only be illustrative and not exhaustive.

9. The contention of the learned counsel for the Petitioner that by the

interpretation rendered by the learned trial court the word „shall‟ in Section

313(1)(b) has been rendered otiose is meritless. As held in Basavaraj

R.Patil(supra) 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 the works to his prejudice and

disadvantage, the Court should in appropriate cases relieve him of such

hardship and at the same time adopt a measure to comply with the

requirements under Section 313 in a substantial manner. The mandate in

clause (b) to Sec. 313(1) is for taking the explanation of the accused and not

for his personal presence. Section 313 of the Code embodies the principle of

audi alterm partem and was enacted for the benefit of the accused. A

beneficial provision for the accused, even if capable of two interpretations,

then the one favouring the accused should be preferred.

10. The contention of the Petitioner that Respondent No.1 would in view of

her exemption from personal appearance, be able to give her explanation on

the basis of legal advice and would be thus prejudicial to the Petitioner is

misconceived. Section 233(2) and 243(1) of the Code enables the accused in

trial of a warrants case to tender a written statement. Sub-Section (5) of

Section 313 of the Code is a further statutory recognition to the right of the

accused to file a written statement already permitted under Sections 233(2)

and 243(1) Cr.P.C. There is no bar in the Code that the said written statements

permitted to be filed cannot be on the basis of legal advice. Moreover,

Section 313 was enacted for the benefit of the accused i.e., for affording him

the opportunity to explain the circumstances appearing in evidence against

him. Its non-compliance can be objected to only by the accused as prejudice

if any, is caused to him. The Petitioner cannot be permitted to complain of

any alleged prejudice as appearance or non-appearance for examination of the

accused under Section 313 in no way adversely affects the Petitioner. The

Court at this stage has to see the prejudice, if any, caused to the accused. The

Respondent No.1 has stated that she has professional constraints coupled with

the fact that she has given an assurance that no prejudice would be caused to

her and that she would not raise any grievance on account of her exemption

from personal appearance for her examination under Section 313 of the Code,

thus, the order of the learned trial court in allowing the Respondent No.1 to be

examined by way of written statement suffers from no illegality.

11. The interference by the Court under Section 482 of the Code is

unwarranted in the present petition. Section 482 of the Code warrants the

exercise of the inherent jurisdiction to give effect to an order under the Code

or to prevent abuse of process of Court or otherwise to secure the ends of

justice. It is to be exercised ex debito justitiae i.e. to do substantial justice.

The power under the section, though wide, has to be exercised sparingly,

carefully, with caution and only when such exercise is justified by the

parameters laid down as was held by the Hon‟ble Supreme Court in CBI vs.

Ravi Shankar Srivastava, 2006 Crl. L.J. 4050. The grant of exemption from

personal appearance is an interlocutory order and interference by the Court

with such an order in exercise of jurisdiction under Section 482 of the Code

has to be done in exceptional circumstances. As held by their Lordships while

dealing with warrant case that the requirement of personal presence in the

Court to answer the questions would be the general rule however if the

exigencies so demand the Court may grant exemption from personal

appearance. The present case is a summons trial case, wherein the Court can

even exempt the examination under Section 313 of the Code, thus to hold that

no exemption from personal appearance be granted for giving an explanation

under the Section would be contrary to the spirit of the Section.

12. I find no merit in the present petition. The same is, accordingly,

dismissed.

(MUKTA GUPTA) JUDGE MARCH 15, 2011 dk