S.K. MISHRA, J.
(1.) Accused in I.C.C. No.2504 of 2005 assails the order passed by the learned J.M.F.C., Bhubaneswar on 14.01.2008. In that case, his petition for dispensing with recording of statement under Section 313 of the Criminal Procedure Code, 1973 (hereinafter referred to as "the Code") has been rejected. The opposite party has initiated a complaint case against the present petitioner for the alleged offence under Section 138 of the Negotiable Instruments Act, 1881. The accused was summoned. He filed application under Section 205 of the Code, which was allowed. The petitioner's attendance was dispensed with and he was allowed to be represented through a counsel. Then, after closure of the prosecution evidence, the case was posted for accused statement. On 30.10.2007, learned counsel for the accused filed an application to dispense with the recording of accused statement under Section 313 of the Code, by resorting to the proviso to Sub-section (1). The learned J.M.F.C. rejected the petition on the ground that no document has been filed by the accused indicating that he is suffering from aggravated cardiac problem, for which he is receiving treatment outside the State, Considering the fact that the present case was lingering for more than four months for accused statement, the learned lower Court rejected the petition. Such order is challenged in the revision.
(2.) Learned counsel for the petitioner in course of hearing of the revision application drew notice of the Court to Annexure-3 i.e. copy of the petition filed by the accused to dispense with the recording of accused statement. It is evident from the said petition that at that time, the accused was suffering from viral fever and also he was a patient of cardiac ailment. On 28.10.2007 all on a sudden, because of the aggravated cardiac problem, the accused had to go outside of the State for treatment and for that reason, the accused was not in a position to appear before the trial Court. Hence, it was prayed that the recording of the statement of the accused be dispensed with. The accused has also pleaded that no prejudice will be caused to him, if such petition is allowed. Learned counsel for the petitioner however is not in a position to indicate, whether the petitioner is still receiving treatment outside the State or whether he is residing at present at Bhubaneswar. Learned counsel for the opposite party however objected to the prayer made by the petitioner.
(3.) It is undisputed at this stage that the petition of the accused- petitioner was allowed under Section 205 of the Code, in which attendance in Court was dispensed with. The proviso to Sub-section (1) of Section 313 of the Code lays down that in a summons ease, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b) of the said. Subsection. The Supreme Court in Chandu Lal Chandrakerv. Puran Mal and another1 had allowed the motion to dispense with the examination of the accused with the condition that he will not raise the question of prejudice, if any, caused to him on account of his non-examination at subsequent stage of trial, in appeal or revision.
(4.) This question also came up for consideration before this Court in Pritish Nandy and another v. State of Orissa2 wherein this Court has held that examination of the accused under Section 313 of the Code can be dispensed with when personal attendance of the accused is dispensed with under Section 205 of the Code, but in such a case, examination of representing counsel in lieu of the accused is not permissible. This Court held that the substantive provision of Section 313 of the Code has a mandatory requirement that the examination of the accused must be a personal one and cannot be delegated to a counsel representing him. Section 313 of the Code consists of two parts one, an enabling power for the Court that it may question, as it thinks necessary, the accused without previously warning him at any stage of the trial and the other, a compulsory direction to the Court to question the accused generally on the case after the prosecution evidence is closed and before the accused is called upon to enter his defence. Proviso to Sub-section (1) is an exception to the compulsory provision of clause (b) and applies only when the case is a summons case and the Court has dispensed with the personal attendance of the accused. In a warrant case, the Court would have no power to dispense with the examination under Clause (b). It is further ruled by this Court in that case that it is not in all summons cases, where attendance of the accused has been dispensed with, his examination should also be dispensed with. In ultimate analysis, the statement made by the accused under Section 313 of the Code is grounded upon the principles of natural justice by furnishing the views of the accused to the Court for its consideration by affording opportunity to him to explain the circumstances appearing against him. It is well settled that an inadequate examination or omission under Section 313 of the Code would not ipso facto render the trial void unless prejudice is shown to have been caused to the accused. The discretion to dispense with the examination of the accused under Section 313 of the Code squarely lies on the Court and it is for the Court to decide whether in given facts, such discretion should be exercised or not.
(5.) The Supreme Court in Basvaraj R. Patil and others v. State of Karnataka and others3 has also held that the Court can exempt examination of the accused under Section 313 of the Code, if the conditions specified in the proviso are fulfilled. However, the Hon'ble apex Court has further indicated that the accused should make an application to that effect supported by an affidavit narrating the facts to satisfy the Court of his real difficulties to be physically present in Court for giving such answers, he shall not be prejudiced by such dispensation of his examination and with an undertaking that he would not raise a grievance on that score at any stage of the case.
(6.) Keeping in view the aforesaid proviso, this Court holds that the Magistrate has jurisdiction to dispense with the examination of the accused under Section 313 of the Code, if the following conditions are satisfied:
(i) The case is a summons case;
(ii) The attendance of the accused has been dispensed with by the Court under Section 205 of the Code. But such provision does not mean that in every summons case where personal attendance of the accused has been dispensed with, the Magistrate should dispense with examination of the accused under Section 313 of the Code. The Magistrate should only dispense with the examination of the accused when it is shown that the accused is under any kind of disability or the accused cannot appear before the Court without incurring considerable expenditure and by travelling from a far off place or that he is suffering from such ailment that it is not possible for him to appear in the Court or that the accused is a Paradanasini lady, who is not appearing in public places; then the Magistrate may exercise the jurisdiction in allowing the application for dispensing with the examination of the accused under Section 313, Cr.P.C. (instances cited are only illustrative and not exhaustive) provided that the accused makes an application supported by his own affidavit indicating, (i) narration of facts to satisfy the Court of his real difficulties to be physically present in the Court for giving answers to the questions put by the Court, (ii) his assurance that no prejudice would be caused to him in any manner by dispensing with his personal presence for such examination and
(iii) an undertaking that he would not raise any grievance on that score at any stage of the case includi
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ng appeal and revision. It appears to this Court that the learned trial Court has not examined the question in its proper perspective. Therefore, it is felt necessary thai, the question should be examined by the trial Court. (7.) In the result, it is directed that the accused-petitioner shall make afresh prayer before the learned lower Court and supported by an affidavit as indicated in the preceding paragraphs. On such event, the learned trial Court shall dispose of the application on merit in the light of the observations made by this Court in this order. The parties are directed to appear before the learned Magistrate on 30th January, 2010. Petitioner shall file a fresh application within seven days thereof. The Magistrate shall do well to dispose of the case as expeditiously as possible. The Criminal Revision is accordingly disposed of. Revision disposed of.