Shri Susan Das and Others vs Smt. Hemlata Das

Manisana, J.—This revision petition arises from the order of the Judicial Magistrate of the first class Sibsagar made on 28.4.1989 in CR Case No. (sic) of 1980 rejecting the prayer of the Petitioners Smti Sarbeswari Das and Smti Minu Das for dispensing with their examination u/s 313(1)(b), Code of Criminal Procedure in view of proviso to Sub-section (1) of Section 313, Code of Criminal Procedure on the ground that the accusation against them is u/s 323, IPC which is a summons-case, and that the Court has dispensed with their personal attendance. It is stated in their application for exemption from examination that the Petitioner Sarbeswati Das is an, ailing woman and the Petitioner Minu Das is living with her husband in an interior village in Hojai, District, Nagaon. The Magistrate rejected the prayer mainly on the ground that the case was not tried in accordance with the procedure for the trial of summons-case, that is, the trial was not under Chapter XX of the Code of Criminal Procedure.

The learned Counsel for the Petitioners has submitted that the offence u/s 323, IPC is punishable with imprisonment not exceeding one year and, therefore, it is a summonscase. The Court also has dispensed with the personal attendance of the Petitioners, proviso to Sub-section (1) of Section 313, Code of Criminal Procedure does not relate to the procedure for the trial but it refers to the offence.

A summons-case can be tried in accordance with the procedure for the trial of warrant-cases (see Section 259, Code of Criminal Procedure). A reading of the proviso indicates that it refers to the offence and not to the procedure for the trial of the offence. In this view of the matter, the learned Magistrate has exercised her jurisdiction illegally.

The next question which arises for consideration is whether in a summons-case where the Court has dispensed with the personal attendance of the accused, the examination of the accused can be dispensed with under proviso to Section 313(1) Code of Criminal Procedure on the facts and circumstances of the case. The object of Section 313 is to enable the accused to explain any circumstances appearing against him in the evidence. It is in the interest of justice and to enable the Court to decide the question of (sic) of the accused. The examination of the accused u/s 313, Code of Criminal Procedure is an important one. Answers given by the accused can be used both in his favour or against him, as provided u/s 313(4), Code of Criminal Procedure. If the Petitioners do not like to answer the question and/or to avail themselves of the opportunity u/s 313, Code of Criminal Procedure, it is at their own risk. It may also be noted that the accused-Petitioners cannot be punished for refusing to answer the question as is provided u/s 313(3), Code of Criminal Procedure. However, the proviso makes the intention of the legislators clear that where the Court has dispensed with the personal attendance of the accused in a summons-case, their examination under Clause (b) of Section 313(1) may be dispensed with, Considering the facts and circumstances of the case, the impugned order is set aside, and if the appearance of the Petitioners Smt. Sarbeswari Das and Smti Minu Das are still under exemption, their examination u/s 313(b) may be dispensed with.

With the said observation and direction, the petition is disposed of. The office shall communicate this order to the Magistrate concerned.