Court can not dispense personal examination of accused u/s 313.

The Sub-Inspector of Police, Mayiladuthurai (respondent-complainant) filed a final report under Sec. 73(2) of the Code of Criminal Procedure (for short ‘the Code’) against the petitioner-accused for alleged offence under Sec. 505(b) of the Indian Penal Code, which was taken on file as C.C.No. 261 of 1989 on the file of the Judicial Magistrate No. I, Mayiladuthurai.

2. After service of process, the petitioner-accused entered appearance through a counsel of his choice to defend him in trial. He, in fact during the course of trial, filed an application under Sec. 205 of the Code praying for his personal appearance being dispensed with and he be represented by his counsel. The trial Magistrate allowed such an application and his presence during the course of trial right through had been dispensed with and he had been represented by his counsel.

3. When the case reached the stage of his examination under Sec. 313 of the Code, he appeared to have filed an application stating that he did not want to answer any questions, which were to be put to him by the trial court and further stated that he would not raise the question of prejudice if any, to be caused to him, on account of his non-examination at the subsequent stage of trial, appeal or revision.

4. The application so filed was stated to have been dismissed. Aggrieved by such dismissal, the petitioner-accused filed a revision before Court of Session, East Thanjavur Division at Nagapattinam, which, in turn, without the same being numbered, was rejected by order dated 19. 1992 on the ground that a revision against an interlocutory order, was not maintainable on the face of the sanguine provisions adumbrated under Sec. 397(2) of the Code.

5. The aggrieved petitioner-accused resorted to the main former action under Sec. 482 of the code praying for the very same relief, as had been done by him in the trial court, in the sense of the questions to be put to him under Sec. 313 thereof to be answered by his counsel, without himself raking up the question of any prejudice having been caused to him either during the stage of trial, appeal or revision.

6. He also filed the latter action praying for stay of further proceedings in the said Calendar Case, pending disposal of the main former action.

7. This Court passed an order on 211. 1992 as follows:

8. Arguments of Mr.C.S. Dhanasekaran, learned counsel for the petitioner accused and Mr.A.N. Rajan, learned Government Advocate (Crl. Side) were heard.

9. It is not as if the question, as now posed in these actions, had not at all come up for consideration before the Apex Court of this country, anterior in point of time. But the plain fact is that such a question came to be canvassed in decisions more than one.

10. In Chandu Lal v. Puran Mal, A.I.R. 1988 S.C. 2163, the appellant was an accused in the criminal case, pending before the trial Court. The trial Court has dispensed with the appellant’s personal appearance under Sec.205 of the Code and has permitted him to be represented at the trial through his counsel. On the conclusion of the trial, learned Magistrate directed the appellant to appear personally before the court for recording his statement as contemplated by Sec. 313 of the Code. The appellant’s request that his statement may be recorded through his counsel was rejected by the trial court and he was directed to appear before the court. The appellant challenged the order of the Magistrate before the High Court by means of a miscellaneous petition under Sec. 482 of the Code. The High Court rejected the petition and refused to interfere with the order of learned Magistrate. The appellant has challenged the order of the Magistrate and the High Court in the appeal before the Supreme Court.

"Notice of motion returnable by three weeks. Interim stay till then."

(a) A Division Bench of the Supreme Court observed:

"...the appellant does not want to answer any of the questions which are going to be put to him by the trial court