IMPORTANT POINT
Even though an accused has been permitted to be represented by a pleader under Section 205 Cr.P.C. he has no right to ask the Magistrate to exempt from his personal examination under Section 313 Cr.P.C. and examination of the accused through pleader under Section 313, Cr.P.C. is not the spirit of the law.

Partha Sakha Datta, J.—These two revisional applications dated 27.6.2007 are against the order dated 30.4.2007 passed by the learned Metropolitan Magistrate, 14th Court, Calcutta in T.R. No.468 of 2003 corresponding to Case No. C-4098 of 2003 under Section 138/141 of the N.I. Act rejecting the prayer of the petitioner-accused for being examined by his Counsel under Section 313 of the Cr. P.C. and directing him instead to be present in the Court on the date as was fixed by the learned Magistrate in the impugned order for examination under the said Section of the Law.

2. According to Mr. Dastoor, learned Advocate appearing for the petitioner the learned Magistrate failed to appreciate that the proviso to sub-section (1) to Section 313 of the Cr. P.C. provides that in the summons case where the Court has dispensed with the personal attendance of the accused, it may also dispense with the examination of the accused under Section 313 of the Cr.P.C.

3. The impugned order reveals that the prayer was made for examination of the accused through the pleader. Application was hotly contested by the complainant on the ground that the order allowing a petition under Section 205 of the Cr.P.C. was a conditional order in the sense that the petitioner was duty bound to appear before the Court as and when he would be directed. Learned Magistrate reasoned that examination of the accused under Section 313, Cr. P.C. cannot be equated with representation of the accused through Counsel under Section 205 of the Cr.P.C. Reference was made to two decisions i.e. A.I.R. 1969 S.C. 381 and (2006) Indian Criminal Law Reporter (Cal.) 348. Learned Magistrate observed that his view is that examination under Section 313, Cr. P.C. becomes essential after closure of evidence with the prosecution case as the Court is to put questions to the accused from the incriminating materials and circumstances that would transpire in evidence during trial and the accused is to give answer to the questions.

4. Mr. A.K. Bhattacharya, learned Advocate appearing for the O.P. No.2 opposed the revisional application stating that the magisterial order was in order and no exemption cannot be taken thereto.

5. I have heard the learned Advocate for the parties. Examination of the accused under Section 313, Cr.P.C. is a matter between the Court and the accused and even though an accused has been permitted to be represented by a pleader under Section 205, Cr. P.C. he has no right to ask the Magistrate to exempt from his personal examination under Section 313,; Cr. P.C. and examination of the accused through pleader under Section 313, Cr. P.C. is not the spirit of the law. The decision in Basavaraj R. Patil and others v. State of Karnataka and others1 has been referred to by both the parties. This is a three-Judge Bench decision where one of the Hon’ble Judges presented a dissenting judgment holding that the object of the Section would be defeated if instead of the accused, his lawyer replied the question with his invented ingenuitys’ In this judgment there was reference to an earlier three-Judge Bench of the Hon’ble Supreme Court in Bibhuti Bhusan Das Gupta and another v. State of West Bengal.2 In Bibhuti Bhusan Das Gupta’s case (supra) the Hon’ble Supreme Court held that a pleader cannot represent the accused for the purpose of Section 342 of the Code (now Section 313 of the Criminal Procedure Code).

6. Learned Advocate for the petitioner referred to the decision in Shri Chandu Lal Chandraker v. Shri Puran Mal and another.3 But the matter of the fact is that this is a judgment of two Hon’ble Judges of the Supreme Court and before this Bench the judgment of earlier three-Judge Bench in Bibhuti Bhusan Das Gupta (supra) was not placed and referred to. However, the decision in Basavaraj R. Patil’s case (supra) was distinguished in a subsequent two-Judge Bench decision of the Hon’ble Supreme Court in K. Anbazhagan v. Superintendent of Police and others.4 Here, it was observed that t