K. Krishnamurthy, R. Ragavan and R. lakshmipathy vs T. Ambrose

C. Nagappan, J.—The Petitioners are accused Nos. 1 to 3 in STC NO III. Coimbatore.

The Respondent herein is the complainant in the case and according to him, on 19.5.1994 a news item was published in the Petitioners'' News Paper ''Dina Malar'', Coimbatore Edition, regarding outraging the modesty of a woman and the complainant had sustained injury. The complainant lodged a private complaint against the Petitioners herein u/s 500 read with Section 109 of I.P.C. and it was taken on file as STC No. 1149 of 1995 by the Judicial Magistrate No. III Coimbatore. The Petitioners herein preferred a petition u/s 205 of Code of Criminal Procedure stating their inability to appear before the trial court on all hearings in Crl. M.P. No. 6268 of 1995 and the learned Judicial Magistrate allowed the said petition on 3.9.1996. Subsequently, at the time of questioning u/s 313 of Code of Criminal Procedure the Petitioners/accused had filed a petition in Crl.M.P. No. 696 of 1999 to permit their counsel to answer the questions on their behalf. The Judicial Magistrate dismissed the same on 23.7.1999 directing the Petitioners herein to appear in the court to answer questions u/s 313 of Code of Criminal Procedure. Aggrieved by that, the Petitioners have filed this petition to set aside the same.

The learned Counsel for the Petitioners contends that the present case is a summons case and the Petitioners have been already exempted from their personal attendance and the trial court may dispense with their examination u/s 313(1)(b) of Code of Criminal Procedure and the impugned order has to be set aside Per contra, the learned Counsel appearing for the Respondent/complainant contends that the prayer in the petition is not properly worded and the order of the trial court has to be sustained.

Admittedly the Petitioners have been charged for an offence punishable u/s 500 read with Section 109 of I.P.C. The punishment provided for the offence u/s 500 of I.P.C. is simple imprisonment for a term which may extend to two years or with fine or with both and in so far as the Section 109 I.P.C. is concerned, the punishment provided is for the main offence. Hence it is clear that the present case is a summons case.

u/s 313(1)(b) proviso, it is provided that in a summons case where the court has dispensed with the personal attendance of the accused, at may also dispense with his examination under Clause (b). The above proviso is very well applicable to the facts of the present case, since it is a summons case. The learned Counsel appearing for the Petitioners contended that the apex court has laid down that summons cases are specifically exempted from the rigour of Section 313(1)(b) of the code and relied on the following decisions.

In Usha K. Pillai Vs. Raj K. Srinivas and others, the apex court has laid down as follows:

the newly added proviso is in the nature of an exception to Clause (b) of Sub-section (1) of Section 313 of the code. It applies to a summer case, it states in no uncertain terms that in a summons - case where the court has dispensed with the personal attendance of the accused it would be open to the court to dispense with the examination of the accused under Clause (b) of Section 313(1) of the code.

In Basavaraj R. Patil and Others Vs. State of Karnataka and Others, the apex court has laid down as follows;

The one category of offence which is specifically exempted from the rigour of Section 313(1)(b) of the code is "summons case". It must be remembered that every case in which the offence triable is punishable with imprisonment for a terms not exceeding two years is a "summons case".

In the above two pronouncements, the apex court laid down that where the court has dispensed with the personal attendance of the accused in a summons - case, it would be open to the court to dispense with the examination of the accused under Clause (b) of Section 313(1) of the code. The Petitioners in their petition have stated that they are appearing through counsel u/s 205 of Code of Criminal Procedure and they plead to permit their counsel to answer the questioning u/s 313 of Code of Criminal Procedure on their behalf. As already seen, the court has got power to dispense with the examination of the accused in a summon case and virtually the Petitioners seek for the relief only. The learned Magistrate had dispensed with the personal attendance of the accused and on their request their examination u/s 313(1)(b) has to be dispensed with. Therefore, the order passed by the learned Magistrate cannot be sustained.

In the result, the petition is allowed and the order passed by the learned Judicial Magistrate No. III, Coimbatore is set aside and the learned Magistrate is directed to further proceed in the matter by dispensing with the examination of the Petitioners Section 313(1)(b) of the code.