Orissa High Court
Pratima Das Adhikari And Another vs State Of Odisha on 1 December, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
AFR CRLMC No.3136 of 2022
Pratima Das Adhikari and Another .... Petitioners
Mr. Bigyan Kumar Sharma, Advocate
-Versus-
State of Odisha .... Opposite Parties
Mr. T.K. Praharaj, SC
Mr. S.S. Mohanty, Advocate for informant
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:01.12.2022
1.
In the instant case, the petitioners have approached this Court
invoking its inherent jurisdiction under Section 482 Cr.P.C.
challenging the correctness, legality and judicial propriety of
impugned order dated 23rd September, 2022 under Annexure-2
passed in G.R. Case No.2525 of 2011 by Smt. S. Mishra, J.M.F.C.,
Bhubaneswar on the grounds inter alia that the same is not
tenable in law and hence, liable to be interfered with and set aside
with a consequential direction to allow and receive written
statements from them in terms of Section 313(5) Cr.P.C.
2. Heard Mr. B.K. Sharma, learned counsel for the petitioners, Mr.
T.K. Praharaj, learned SC and Mr. S.S. Mohanty, learned counsel
for the informant.
3. At present, the petitioners are facing trial for offences under
Section 498-A IPC and Section 4 of the Dowry Prohibition Act and
Pratima Das Adhikari and Another Vrs. State of Odisha
after the prosecution evidence was closed, they moved an
application dated 27th January, 2022 (Annexure-1) before the
learned court below seeking its permission to examine them as per
Section 313(5) Cr.P.C., however, after hearing both the sides, the
impugned order dated 23rd September, 2022 (Annexure-2) was
passed which is under challenge on the ground that under the
circumstances, denial of the same tantamount to miscarriage of
justice and in violation of the salutary principles of nature justice.
4. Mr. Sharma, learned counsel for the petitioners submits that
such a provision under Section 313(5) Cr.P.C has received
statutory recognition by the introduction of the Code of Criminal
Procedure (Amendment) Act, 2008 with effect from 31st
December, 2009 which is intended to benefit the accused and also
for the court in reaching at just conclusion. It is further contended
that a provision for filing written statement is already in statute
through Sections 233(2) and 243(1) Cr.P.C. to be followed in
Sessions trial and warrant cases by Magistrates respectively which
are in consonance with the spirit of law to provide an opportunity
to the accused to explain the circumstances appearing against him
and in so far as Section 313(5) Cr.P.C. is concerned, it has been
introduced to achieve a similar purpose and objective which is a
constitutionally recognized right for an accused to consult and
defend properly. According to Mr. Sharma a request was made to
the learned court below to receive the written statements from
the petitioners in accordance with Section 313(5) Cr.P.C. under
the pressing circumstances but the same was not appreciated in
proper perspective which led to the passing of the impugned
order under Annnexure-2. In support of contention, Mr. Sharma,
learned counsel for the petitioners placed reliance on the
decisions, such as, Keya Mukherjee Vrs. Magma Leasing Ltd. and
Pratima Das Adhikari and Another Vrs. State of Odisha
another AIR 2008 SC 1807 and United Phosphorus Ltd. Vrs. Sunita
Narain and Another decided in CRL.M.C. No.2116 of 2010 and
disposed of on 15th March, 2011 by the Delhi High Court.
5. Mr. Mohanty, learned counsel for the informant on the other
hand would submit that the learned court below did not commit
any wrong or illegality in denying the petitioners exemption and
their request for receiving written statements as per Section 313(5)
Cr,P.C. It is contended by Mr. Mohanty that there has been
considerable delay in the completion of trial which is pending
since long handsomely contributed by the petitioners. It is claimed
that the petitioners should be directed to appear in person for the
purpose of recording of their statements under Section 313(1)(b)
Cr.P.C. It is pleaded that the petitioners have adopted all possible
means to prolong the litigation by filing numbers of applications
at different point of time. According to Mr. Mohanty, learned
counsel for the informant, an element of discretion is involved to
invoke Section 313(5) Cr.P.C. as the expression 'may take the help
of Prosecutor and defence counsel in preparing relevant questions'
appears therein leaving the Magistrate to take a decision whether
to dispense with the presence of an accused at that stage of the
proceeding. It is claimed that examination of an accused under
Section 313(1)(b) Cr.P.C. may be dispensed with in a summons
case but cannot be in a warrant cases and while contending so, the
following decisions in Usha K. Pillai Vrs. Raj K. Srinivas and others
AIR 1993 SC 2090 and a judgment of Delhi High Court in Raja @
Dayanand Vrs. State of NCT of Delhi 2019 (3) CCC 596 (Delhi)
besides Keya Mukherjee (supra) and Dakshinamoorthy and others
Vrs, Union of Territory of Pondicherry 2002 CRI. L.J. 2359 have
been placed reliance on.
Pratima Das Adhikari and Another Vrs. State of Odisha
6. As per Section 313(5) Cr.P.C., the court may receive the
assistance of the Prosecutor and defence counsel to prepare
relevant questions which are to be confronted to the accused at
the time of his examination in terms of sub-section (1)(b) thereof
and it may also permit him filing written statement as sufficient
compliance of the said provision, a mechanism which has been
inserted by Act of 2009 (w.e.f. 31st December, 2009). Any
question may be put to an accused in course of an enquiry or trial
at the discretion of the court as per clause (a) of Section 313(1)
Cr.P.C. but it is mandatory under clause (b) thereof to examine
him generally on the case after the prosecution evidence is
concluded and before he is called to submit defence. As per the
proviso to sub-section (1) of Section 313 Cr.P.C., in a summons
case, such examination may be dispensed with, where the court
had exempted him from personal attendance. Such dispensing
with examination of an accused is not available in a warrant
triable case. The purpose of introducing a provision in 2008 by
way of sub-section (5) of Section 313 Cr.P.C. is only to ensure that
there is sufficient compliance of the statutory mandate at the time
of recording of the statement of an accused confronting him all
the incriminating materials so as to receive due explanation in
respect thereof.
7. An application was moved by the petitioners to examine them
in terms of Section 313(5) Cr.P.C. by stating that petitioner No.1
has been advised against climbing stairs and place of height and in
so far as petitioner No.2 is concerned, he is staying in USA and is
unable to physically appear before the court due to pandemic
situation. Mr. Sharma, learned counsel for the petitioners submits
that petitioner No.2 has to incur huge expenditure to travel all the
way from USA to India for the purpose of his recording of
Pratima Das Adhikari and Another Vrs. State of Odisha
statement under Section 313(1)(b) Cr.P.C. and therefore, under the
above circumstances, application under sub-section(5) thereof was
moved which is also in the light of the decision of the Supreme
Court in Basavaraj R. Patil and others Vrs. State of Karnataka and
others 2000(8) SCC 740 which was later subscribed in Keya
Mukherjee(supra), the decisions by which exemption from
attending the court at the time of recording of statement under
Section 313(1)(b) Cr.P.C. was recognized and accepted long before
introduction of sub-section (5) by the Code of Criminal Procedure
(Amendment) Act, 2008. In such view of the matter, according to
Mr. Sharma, learned counsel for the petitioners, the learned court
below grossly erred in disallowing examination in the manner
contemplated under the statute in exceptional circumstances.
8. In Usha K. Pillai (supra), examination of an accused in a
warrant case is held to be mandatory which is not in dispute. In
Raja @ Dayanand (supra), in the facts and circumstances of the
case, the Delhi High Court concluded that examination is to be in
person barring few situations where statement under Section 313
Cr.P.C. of the accused cannot be recorded by calling him
personally except with undue delay and inconvenience. In Keya
Mukherjee (supra), the Apex Court held and observed that in case
of examination of accused under Section 313 Cr.P.C., exemption
from personal attendance is statutorily provided in summon cases
and it can be extended to other cases if it works hardship to him
and there the procedure to be followed as laid down in Basavaraj
R.Patil (supra). The ratio in Usha K. Pillai (supra) is that
exanimation of accused in a warrant triable case cannot be
dispensed with by examining the lawyer appearing for him as that
would not be sufficient compliance of Section 313 (1)(b) Cr.P.C.
Pratima Das Adhikari and Another Vrs. State of Odisha
9. The petitioners claim for their examination in terms of sub-
section (5) of Section 313 Cr.P.C. and do not claim for its
exemption. The reason behind such examination is that petitioner
No.1 is sick and her medical condition does not permit her to
appear before the court. In respect of petitioner No.2, it has been
claimed that he is not in India but staying in United States of
America and therefore, his statement should be recorded in the
manner as prescribed in Section 313(5) Cr.P.C. After having gone
through the decisions (supra), it has to be concluded that
examination under Section 313(1)(b) Cr.P.C. cannot be dispensed
with and recorded through the represented counsel even though
personal attendance has been exempted under Section 205 Cr.P.C.
or Section 317 Cr.P.C. in warrant cases. None of the decisions so
relied upon by Mr. Mohanty, learned counsel for the informant
prohibit such examination under Section 313(5) Cr.P.C. rather in
Raja @ Dayanand (supra), it has been allowed in certain situations
and held that statement under Section 313(1)(b) Cr.P.C. may be
recorded not by calling the accused to appear personally where
undue delay and inconvenience would occasion as a result
thereby. That apart, the Apex Court in Keya Mukherjee (supra)
suggested such a course of action by referring to the decision of
Basavaraj R. Patil. Both the aforesaid decisions have been
rendered at a time prior to the amendment to Section 313 Cr.P.C.
introduced in 2009. In Basavaraj R. Patil ibid, the Supreme Court
discussed elaborately as to the special circumstances under which
examination of an accused may be held who is not able to
physically appear before the court for certain reasons and
observed in the following words that "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
Pratima Das Adhikari and Another Vrs. State of Odisha
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 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 other 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?"
10. In the aforesaid decision, it is further held that the provision
mainly intended to benefit the accused and as its corollary to
benefit the court in reaching at final conclusion and at the same
time, it has to be borne in mind that the provision is not to nail
the accused to any position but to comply with the most salutary
principle of natural justice enshrined in the maxim 'audi alteram
partem'. In order to meet such exigencies, the amendment was
purposefully introduced in Section 313 Cr.P.C. by including sub-
section (5) for receiving written statement and taking the help and
assistance of the Prosecutor and defence counsel in preparing the
relevant questions to be put to the accused. Even similar
provisions for receiving written statements are in place in Sections
232 and 243 Cr.P.C. and no prejudice can be claimed by the
prosecution either.
11. Whether the learned court below, in the facts and
circumstances of the case, was justified in demanding physical
Pratima Das Adhikari and Another Vrs. State of Odisha
presence of the petitioners at the stage of their examination under
Section 313(1)(b)Cr.P.C? It is reiterated that examination of an
accused is not dispensed with in a warrant triable case unlike
summons cases and it cannot also be recorded through a counsel,
rather, relevant questions may be put to him and written
statement received during his examination which is a procedure
incorporated by way of amendment to be adopted under
exceptional circumstances where he is unable to attend the court.
12. The prayer to receive statements from the petitioners in terms
of Section 313(5) Cr.P.C. was rejected on the ground that case to
be triable by a warrant procedure and that apart, such exemption
cannot be permitted. In the considered opinion of the court, the
learned court below was required to examine the request of the
petitioners in the spirit of law considering the intent and purport
of Section 313(5) Cr.P.C. and. The Court perused the application
(Annexure-1) moved before the court below which has not
mentioned in detail, the real difficulties to be physically present
with an assurance that such examination would not be challenged
later on the ground of prejudice. It has been claimed that
petitioner No.2 is in USA and for that the details of the place of
residence and other facts ought to have been brought to the
notice of the learned court below so also with regard to petitioner
No.1, who is stated to be having some health issues. In any case,
no such occasion ever arose for the learned court below to
demand the same since it was of the view that such examination
in absence of physical presence of the petitioners is impermissible.
13. The Court is of the inescapable conclusion that since the
amended law has come into force and much before, such a
procedure was put in place by judgmental law in Basavaraj R.
Patil and followed in Keya Mukherjee (supra), the learned court
Pratima Das Adhikari and Another Vrs. State of Odisha
below fell into serious error to hold that examination in terms of
Section 313(1)(b) Cr.P.C cannot be permitted in absence of the
petitioners for being a warrant triable case. In fact, the court
below was required to find out the reasons with all details from
the petitioners for the purpose of their examination in the manner
prescribed in Section 313(5) Cr.P.C. As a consequence, the order
of rejection deserves to be set aside and accordingly, it is ordered.
14. In the result, the petition stands allowed.
15. As a necessary corollary, the impugned order dated 23rd
September, 2022 under Annexure-2 passed in G.R. Case No.2525
of 2011 by Smt. S. Mishra, J.M.F.C., Bhubaneswar is hereby
quashed with a consequential direction that the petitioners are to
submit and narrate details of the health condition of petitioner
No.1 supported by medical papers and whereabouts of petitioner
No.2 with regard to his stay and place of residence in USA before
the learned court below and in the event the same is furnished,
the learned J.M.F.C. shall consider it and pass appropriate orders
on the application filed under Section 313(5) Cr.P.C. keeping in
view the settled position of law and in the light of the direction
and observations made hereinabove.
(R.K. Pattanaik)
Judge
U.K. Sahoo
