2008 (4) TMI 701 - SC - Indian Laws

Whether in summons procedure case the accused should be exempted from personal examination under Section 313 (1)(b) Cr. P.C.? 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?

Issues Involved:
1. Rejection of the appellant's prayer for dispensing with her examination under Section 313 Cr.P.C.
2. Applicability of Section 205 Cr.P.C. in conjunction with Section 313 Cr.P.C.
3. Judicial discretion in summons procedure cases regarding personal examination under Section 313(1)(b) Cr.P.C.
4. Interpretation of Section 313 Cr.P.C. in light of technological advancements and legal aid improvements.

Detailed Analysis:

1. Rejection of the Appellant's Prayer for Dispensing with Her Examination under Section 313 Cr.P.C.:
The appellant's prayer for dispensing with her personal examination under Section 313 Cr.P.C. was rejected by the learned Magistrate. This rejection was upheld by the Additional Sessions Judge and subsequently by the Calcutta High Court. The appellant argued that in view of the Supreme Court's decision in *Chandu Lal Chandraker v. Puran Mal & Anr.* (AIR 1988 SC 2163), her prayer should have been accepted. The Court noted that the word "may" in the proviso to Section 313(1)(b) Cr.P.C. indicates judicial discretion, allowing the Magistrate to decide based on the circumstances whether to exempt the accused from personal examination.

2. Applicability of Section 205 Cr.P.C. in Conjunction with Section 313 Cr.P.C.:
The appellant was permitted to be represented by a pleader under Section 205 Cr.P.C., but her petition under Section 313(1)(b) Cr.P.C. was rejected. The Court discussed that the stage at which the personal appearance of the accused was dispensed with under Section 205 Cr.P.C. is immaterial. The fact that the petition under Section 205 was allowed before the exemption under Section 313 Cr.P.C. does not justify rejecting the petition filed under the proviso to Section 313(1)(b) Cr.P.C.

3. Judicial Discretion in Summons Procedure Cases Regarding Personal Examination under Section 313(1)(b) Cr.P.C.:
The Court referred to several precedents, including *Bibhuti Bhusan Das Gupta & Anr. v. State of West Bengal* (AIR 1969 SC 381) and *Usha K. Pillai* (1993 (3) SCC 208), to highlight that the pleader cannot represent the accused for the purpose of Section 313 Cr.P.C. The Law Commission's 41st Report recommended that in summons cases where the personal attendance of the accused has been dispensed with, the court should have the power to dispense with his examination. This recommendation was followed by Parliament, resulting in the current wording of Section 313 Cr.P.C.

4. Interpretation of Section 313 Cr.P.C. in Light of Technological Advancements and Legal Aid Improvements:
The Court acknowledged the revolutionary changes in communication technology and improved legal aid facilities over the past 25 years. It suggested a pragmatic and humanistic approach, allowing the court to dispense with the accused's personal presence during examination in exceptional cases involving undue hardship or large expense. This approach was outlined in *Basav Raj R Patil v. State of Karnataka* (2000 (8) SCC 740), where the Court proposed that the accused could answer the questions through a written questionnaire, accompanied by an affidavit, if justified by genuine difficulties.

Conclusion:
The Supreme Court concluded that the High Court's impugned order does not suffer from any infirmity warranting interference. The appeal was dismissed, affirming the judicial discretion exercised by the lower courts in rejecting the appellant's prayer for exemption from personal examination under Section 313 Cr.P.C. The Court emphasized the importance of balancing the legislative intent with practical considerations, ensuring fairness and justice in the criminal trial process.

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