IMPORTANT POINT
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.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Leave granted.

2. Challenge in this appeal is to the order passed by a learned Single Judge of the Calcutta High Court dismissing the application filed by the appellant under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 (in short the ‘Cr.P.C’). Challenge in the said application was to the order dated 26.9.2006 passed by learned Additional Sessions Judge, 7th Fast Track Court, Calcutta in Criminal Revision No. 36 of 2006 by which the order dated 2.2.2006 passed by learned Metropolitan Magistrate 11th Court, Calcutta in Case No. C-510 of 2003 was upheld. Learned Magistrate has rejected the appellant’s prayer for dispensing with her examination under Section 313 Cr.P.C. by examining of the pleader who was to represent her under Section 205 Cr.P.C. The proceeding was one under Section 138 of the Negotiable Instruments Act, 1881 (in short the ‘NI Act’). Appellant appeared before learned Magistrate on 2.6.2003 and was released on bail. On 31.1.2004 she was examined under Section 251 Cr.P.C. Since she was absent on 3.7.2004, warrant of arrest was issued against her but on 20.7.2004 she surrendered before learned Magistrate and was released on bail. Recording of evidence was completed and 5th May, 2005 was fixed for her examination under Section 313 Cr.P.C. But on that date she was absent and a prayer was made for adjournment. The date was adjourned to 12.5.2005. On that date appellant filed a petition purported to be under Section 313 (1)(b) of Cr.P.C. Another petition was filed on 23.8.2005 under Section 205 Cr.P.C. Learned Magistrate allowed the petition filed under Section 205 Cr.P.C. on 2.2.2006 subject to the condition that the appellant shall appear before the Court as and when called. But the petition under Section 313(1)(b) Cr.P.C. was rejected.

3. Learned Magistrate fixed 6.3.2006 for examination of the accused under Section 313 Cr.P.C. and directed the appellant to be personally present on that date. It is against this order of learned Magistrate a revision was filed before learned Additional Sessions Judge who confirmed the order. The order was challenged before the High Court, which as noted above the same was rejected.

4. Learned counsel for the appellant submitted that in view of this Court’s order in Chandu Lal Chandraker v. Puran Mal & Anr.,1 (AIR 1988 SC 2163) the prayer should have been accepted. It was pointed out that whether in summons procedure case the accused should be exempted from personal examination under Section 313 (1)(b), the Court has exercised judicial discretion. The word ‘may’ occurring in the proviso clearly indicates that learned Magistrate may or may not keeping the exigency of the circumstances allow the prayer of the appellant for exemption from personal examination under Section 313 Cr.P.C. According to him on the factual position when the appellant was permitted to be represented in terms of Section 205 Cr.P.C., the courts below had erroneously rejected the prayer.

5. It is pointed out that question as to at what stage of the trial the personal appearance of the accused was dispensed with under Section 205 Cr.P.C. is not material because the fact is that on the prayer of the appellant the petition under Section 205 was allowed before the exemption of the accused under Section 313 Cr.P.C. Merely because the prayer was allowed only almost on the conclusion of the trial cannot be a ground to reject a petition filed under the proviso to Section 313 (1)(b) Cr.P.C.

6. Learned counsel for the respondent No.1 supported the impugned order of the High Court.

7. A few decisions of this Court need to be noticed in this context.

8. In Bibhuti Bhusan Das Gupta v. State of West Bengal,2 AIR 1969 SC 381, this Court held that the pleader cannot represen the accused for the purpose of Section 342 of the Code of Criminal Procedure, 1898 (hereinafter referred to as ‘Old Code’) which is presently Section 313 Cr.P.C.

9. Section 313 Cr.P.C. reads a