The court has the discretion to dispense with the personal presence of the accused and allow his counsel to answer the questions on his behalf in exceptional circumstances.

1. The sole question arises for consideration in this petition filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as Cr. P.C. for short) is:-

Whether the presence of the accused is mandatory for the examination contemplated under Section 313(1)(b) Cr. P.C.?

2. The person who has raised this question before this court is the 2nd accused in S.C. No. 1075 of 2007. According to him, an application moved by him as Cri. M.P. No. 1383 of 2013 after the closure of the prosecution evidence for getting exempted from being personally present for examination under Section 313(1)(b) Cr. P.C. was dismissed by the Additional District and Sessions Judge, Thiruvananthapuram on 22.04.2013 and therefore, he was aggrieved.

3. The allegation against the petitioner was that he along with the 3rd accused in the case has sold the dinner sets stolen by the 1st accused on 23.06.1999 from the Kowdiar Palace to multiple persons, during the course of his employment there as a store-keeper.

4. The trial in the case was commenced and the examination of the prosecution witnesses was concluded. The case was posted for examination of the accused under Section 313(1)(b), Cr. P.C.

5. The petitioner at the relevant time being employed at Qatar filed Cri. M.P No. 1383/2013 supported by his affidavit stating the reason and prayed to exempt him from being personally present for examination under Section 313(1)(b)Cr. P.C. and permit his counsel to answer the questions to be put to him on his behalf.

6. The petition was dismissed and the case was posted to 27.04.2013 for pursuing with the examination under Section 313(1)(b) Cr. P.C. Before the Sessions Court, the petitioner, placing reliance upon the dictum laid down by the Apex Court in Basavaraj R. Pattil vs. State of Karnataka, 2000 KHC 814 SC : AIR 2000 SC 3214 and the dictum of this court in Shaji vs. State of Kerala, 2005 KHC 799 urged that the Sessions Judge has ample power to grant the exemption to the accused from being personally present to face the examination contemplated under Section 313(1)(b), Cr. P.C. and allow his counsel to answer the question. But, the learned Sessions Judge dismissed the application and thereby declined his prayer for exemption from personal appearance. In the said circumstances, this application under Section 482, Cr. P.C. has come up with the prayer to quash the order dated 22.04.2013 in Cri. M.P. No. 1383 of 2013 in S.C No. 1075 of 2007 and to permit his counsel to answer the questions that would be put to him during the examination under Section 313(1)(b), Cri. P.C. by the Additional District and Sessions Judge, Thiruvananthapuram.

7. Per contra, learned Public Prosecutor had placed reliance upon the dictum in Anbazhakan v. Superintendent of Police, reported in AIR 2004 SC 524, and urged that this court has no jurisdiction in a sessions trial case to exempt personal appearance of the accused during examination under Section 313(1)(b), Cr. P.C. and allow his counsel to answer questions intended to be answered by the accused himself.

8. After hearing the rival contentions of the counsel on the issue and upon paying heed to the judgments relied upon by them and the law on the point, the learned Sessions Judge found that neither the statutory provisions nor the Judge made laws cited by counsel would help the petitioner in his quest for exemption from the examination contemplated under Section 313(1)(b), Cr. P.C.

9. The learned Sessions Judges view on the matter is described in paragraphs 5 and 6 of the impugned order and that is worthy of noting hereunder:

I have gone through the above three decisions and also the provision of law. It is true that the proviso to Section 313(1), Cr. P.C. would enable the court to dispense with the presence of the accused but it is applicable only in summons trial cases. The provisions of law would not allow the Sessions Court to dispense with the presence of the accused when the case is posted for questioning u/s