The statutory recognition of the principles of natural justice and the accused's right to explain the circumstances appearing in the evidence against them.

JUDGMENT :

A. Pasayat, J. - Petitioners call in question legality of the order passed by the learned Judicial Magistrate, first class, Bhubaneswar (in short, 'JMFC') by which he rejected the prayer made by petitioners to dispense with their personal attendance and to record their statement through their counsel.

2. Stand of the petitioners in the present application is that they were permitted to be represented through counsel u/s 205 of the Code of Criminal Procedure, 1973 (in short, the 'Code'), and therefore, their statement in terms of Section 313 of the Code need not be recorded. In esssence, their stand is that since they were allowed to be represented u/s 205 of the Code, they can seek such exemption in terms of the proviso to Clause (b) of Sub-section (1) of Section 313 of the Code. The stand of the opp. party on the other hand is that such a prayer cannot be accepted.

3. The undisputed position is that the case at hand is a summons case as the offence allegedly committed is punishable u/s 506 of the Indian Penal Code, 1860 (in short, 'IPC') which carries maximum sentence of two years. Sub-section (1) of Section 313 was introduced in its present form pursuant to the recommendation made by the 41st Report of the Law Commission. The words "in every inquiry or trial" put the matter beyond any shadow of doubt that it applies also to summons cases. The proviso is a new provision which came to be added to Sub-section (1) with a view to enabling the Court to dispense with the examination of the accused under Clause (b) in a summons case, if the Court has already dispensed with his personal attendance at an earlier point of time. Sub-section (1) of Section 342 of the Code of Criminal Procedure, 1898 (referred to hereafter as the 'old Code') has sow been divided into two Clauses (a) and (b) in Section 313. Clause (a) uses the expression 'may.' to indicate that the matter is left to the discretion of the Court to put questions to the accused at any stage of inquiry or trial whereas Clause (b) uses the expression 'shall' to convey that is necessary for the Court to examine the accused after the witnesses for the prosecution have been examined, before he is called on for his defence. If the Court on completion of the prosecution evidence finds that there are cretain circumstances appearing in the evidence against the accused, the Court is obliged by Clause (b) to question the accused before he is called on to make his defence. The provision being general in nature applies to all inquiries and trials under the Code. The purpose is to give the accused an opportunity to explain the circumstances appearing against him in evidence tendered by the prosecution so that the said exalanation can be weighed vis-a-vis the prosecution evidence before the Court reaches its conclusion in that behalf. Sub-section (1) itself makes it clear that the purpose is to enable the accused to explain the circumstances appearing in the evidence against him. On a plain reading of Section 313 of the Code it is clear that the Court is empowered by Clause (a) to question the accused at any stage of the inquiry or trial while Clause (b) obligates the Court to question the accused before he enters of his defence on any circumstance appearing in the prosecution evidence against him. This is the statutory recognition of the salutary rule of audi alteram partem and gives a statutory recognition to the principles of natural justice.

4. As observed by this Court in Ashok M. Jayari and Anr. v. Surajbhan Jain (1995)8 OCR 280the section is expressly designed to secure that the Court in the interest of strict justice should by the frame of its questions, perform a double duty, i.e., it should (i) communicate to the accused to full extent that may be found necessary in each particular case, what is alleged againt him in the evidence for the prosecution, and-(ii) ascertain from him what explanation or defence, in law or in fact, he wishes to put forward in respect thereof. It i