Afeeque vs State Of Kerala
2023 Latest Caselaw 10728 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE C.S.DIAS
    THURSDAY, THE 19TH DAY OF OCTOBER 2023 / 27TH ASWINA, 1945
                      CRL.REV.PET NO. 872 OF 2011
  AGAINST THE ORDER/JUDGMENT CRA 319/2010 OF ADDITIONAL DISTRICT
                         COURT (ADHOC), MANJERI
CC 594/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PARAPPANANGADI
REVISION PETITIONER/S:

          RAFEEQUE, S/O.SAIDU, MOOKKAN HOUSE,
          TIRURANGADI, KACHADI, MALAPPURAM DISTRICT.

          BY ADVS.
          SRI.K.P.SUDHEER
          SRI.SUMODH MADHAVAN NAIR



RESPONDENT/S:

          STATE OF KERALA
          PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM,
          REPRESENTING SUB INSPECTOR OF POLICE,, TIRURANGADI
          POLICE STATION, P.O.TIRURANGADI-, 676306, MALAPPURAM
          DISTRICT.


OTHER PRESENT:

          SR PP SMT SEETHA S




     THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 19.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.REV.PET NO. 872 OF 2011
                                  2

           (Dated this the 19th day of October, 2023)

                              ORDER

The revision petition is filed questioning the

correctness and legality of the judgment in Crl.A.

No.319/2010 of the Court of Sessions (Adhoc-I), Manjeri

Division (Appellate Court) allowing the appeal by way of

remand and directing the Court of the Judicial Magistrate

of First Class-I, Parappanangadi (Trial Court), to question

the revision petitioner/accused under Sec.313 of the

Code of Criminal Procedure (in short, 'Code') in CC

No.594/2006 and decide the complaint afresh.

Facts in brief

2. The prosecution case is that, on 27.03.2006, the

Tirurangadi Police got information that the accused was

in possession of obscene compact disc, for the purpose of

hire and sale, in a shop named 'Choice VCD Club'

situated at Tirurangadi. The Tirurangagdi Police,

registered Ext.P5 FIR and arrested the accused. The

Police after investigation filed their final report before CRL.REV.PET NO. 872 OF 2011

the learned Magistrate alleging the accused to have

committed the offence under Sec.292 (2) (a) of the Indian

Penal Code ('IPC', for brevity).

3. The accused denied the substance of accusation

read over to him. In the Trial, the prosecution examined

PWs 1 to 9 and marked Exts.P1 to P6 and MO1 in

evidence.

4. The learned Magistrate, after analysing the

materials placed on record, found the accused guilty and

convicted and sentenced him to undergo simple

imprisonment for a period of three months and pay a fine

of Rs.1,000/-, and in default to undergo simple

imprisonment for a further period of fifteen days.

5. Aggrieved by the said judgment, the accused

preferred Crl. A No. 319/2010 before the Appellate

Court.

6. The Appellate Court, on a consideration of the

materials on record, found that the accused was not CRL.REV.PET NO. 872 OF 2011

questioned under Sec.313 of the Code. Therefore, the

proceedings from that stage was vitiated. Accordingly,

the learned Sessions Judge directed the learned

Magistrate to question the accused under Sec.313 of the

Code and pass a fresh judgment.

7. It is challenging the order of remand, the present

revision petition is filed.

8. Heard; Sri. K.P Sudheer, the learned counsel

appearing for the revision petitioner and Smt.Seetha.S,

the learned Public Prosecutor appearing for the

respondent/State.

9. The learned Counsel appearing for the revision

petitioner argued that the Appellate Court has misread

the materials on record and failed to understand Sec.313

of the Code in its proper perspective. He contended that,

an offence under Sec.292 of the IPC has to be tried as a

summons case. Therefore, in view of the proviso to sub-

sec.(1) of Sec.313 of the Code, the Court has the power CRL.REV.PET NO. 872 OF 2011

to dispense with the personal appearance of the accused

and also dispense with his examination under clause (b)

of sub-sec.(1) of Sec.313. He drew the attention of this

Court to CMP No.3439/2009 dated 30.12.2009, which

was filed by the counsel for the accused seeking

dispensation of his examination under clause (b) of sub-

sec.(1) of Sec.313. The learned Magistrate had allowed

the said application. Hence, there was no necessity for

the learned Sessions Judge to remand the matter back to

the learned Magistrate Court to conduct the examination

under the above provision. Hence, he submitted that the

impugned judgment be set aside by allowing the

petitioner and acquitting the accused.

10. Is there any illegality, impropriety or irregularity

in the judgment passed by the Appellate Court?

11. Section 313 of the Code reads as follows:-

"313. Power to examine the accused.--(1) 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) CRL.REV.PET NO. 872 OF 2011

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. [(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".

(ephasis given)

12. An offence under Sec.292 of the IPC is

punishable for a term which may extend to two years or

with fine which may extend to Rs.2,000/- in the event of

first conviction and in the event of the second conviction,

the accused is liable to be punished for a term, which

may extend to five years and the fine may extend to

Rs.5,000/-.

13. A summons case is defined under Sec.2(w) of the

Code that is a case relating to offence not being a

warrant case.

CRL.REV.PET NO. 872 OF 2011

14. A warrant case is defined under Sec.2(x) of the

Code which states that it is a case relating to offence

punishable with death, imprisonment for life or

imprisonment for a term exceeding two years. Therefore,

when the punishment prescribed is two years and below,

it is necessarily a summons case.

15. On a reading of Ext.P5 FIR, it is evident that the

accused has been charged with the above offence for the

first time. Thus necessarily the proceedings initiated in

C.C.No.594/2006 is a summons case.

16. The examination of the records reveal that the

accused was employed abroad and his personal

attendance was dispensed with as provided under

Section 205 of the Code.

17. At the Sec.313 questioning stage, the counsel for

the accused filed C.M Appln. No.3434/2009 seeking to

dispense with the examination of the accused under

clause (b) of subsection (1) of Section 313 of the Code.

18. The above application was also allowed by the CRL.REV.PET NO. 872 OF 2011

learned Magistrate. It was in the above background the

learned Magistrate did not question the accused under

Section 313 of the Code.

19. Unfortunately, the above aspect was neither

brought to the notice of the Appellate Court nor did the

Appellate Court ascertain the matter from the records.

20. In Basavaraj R. Patil and others vs. State of

Karnataka and others [(2000) 8 SCC 740] the

Honourable Supreme Court observed as under:

"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 of 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 CRL.REV.PET NO. 872 OF 2011

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?" (emphasis given)

21. Again in TGN Kumar vs. State of Kerala and

others [2011 (1) KHC 142] the Honourable Supreme

Court has held as under:

"13.On the plain language of Section 313, it is evident that in a summons case, when the personal appearance of the accused has been dispensed with under Section 205 of the Code, a discretion is vested in the Magistrate to dispense with the rigour of personal examination of the accused under Section 313 of the Code as well".

CRL.REV.PET NO. 872 OF 2011

22. A reading of the above provision and its

interpretation in the aforesaid precedents make it

explicitly clear that, in a summons case, where the Court

has dispensed with the personal attendance of the

accused under Section 205 of the Code, the accused can

also seek for dispensation of his examination under

clause (b) of subsection (1) of Section 313 of the Code.

23. Once an accused seeks for dispensation of his

examination under clause (b) of subsection (1) of Section

313 of the Code, he cannot take a volte face and allege

that his non-examination under Section 313 of the Code

has caused prejudice to him.

24. It is well-nigh settled only when the accused

substantiates that the non-examination of the accused

under Section 313 of the Code has resulted in failure of

justice, shall the Appellate Court/Revisional Court

remand the matter back to the Trial Court to the stage of

Section 313 of the Code.

CRL.REV.PET NO. 872 OF 2011

25. In the instant case, as the accused had on his

own free will and volition sought for dispensation of his

personal attendance and dispensation of his examination,

he cannot be heard to state that there has been failure of

justice due to his non examination under the said

provision.

26. In the above conspectus, I hold that the

Appellate Court has gone wrong by finding that

prejudice has been caused to the accused in his non-

examination under Section 313 of the Code.

Consequently, I hold that the impugned judgment suffers

from errors of law and fact warranting the impugned

judgment to be set aside and directing the Appellate

Court to consider Crl.A.No.319/2010 on its merits and in

accordance with law.

27. In the result;

(i) The revision petition is partly allowed;

(ii) The impugned judgment in Crl.A.No.319/2010 is set

aside.

CRL.REV.PET NO. 872 OF 2011

(iii) The Court of Sessions, Manjeri is directed to

dispose of Crl.A.No.319/2010, in accordance with

law;

(iv) The parties/their counsel are directed to appear

before the Appellate Court on 20.11.2023;

(v) The Registry is directed to forthwith forward a copy

of this order with the lower court records to the

Appellate Court for compliance.

(vi) As the appeal is of the year 2010, the Appellate

Court is directed to dispose of the appeal as

expeditiously as possible.

Sd/-

C.S.DIAS JUDGE rkc/19.10.23