LexSMT. KEYA MUKHERJEE versus MAGMA LEASING LIMITED & ANR.
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' - [2008] 6 S.C.R. 1 SMT. KEYA MUKHERJEE v MAGMA LEASING LIMITED & ANR. (Criminal Appeal No. 620 of 2008) APRIL 8, 2008 [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] Code of Criminal Procedure, 1973- s. 313 (1) b) Proviso A B - Examination of accused - Exemption from - Other than in summons cases·- Held: In cases other than summons cases, c it is obligatory on the court to examine the accused under the provision when it is for the benefit of the accused - However, if its compliance causes great prejudice and disadvantage to the accused, the court in appropriate cases allow the accused to answer the question without making his physical presence 0 in the court on account of justifying the exceptional exigency - Procedure for making application for exemption and modus ofthe alternative examination u/s 313 described. In a proceeding u/s 138 of Negotiable Instruments Act, 1881, after completion of recording of evidence, the E accused though granted exemption u/s 205 Cr.P.C. was denied exemption from examination u/s 313 (1) (b). The order denying the exemption was confirmed by the Revisional Court. Challenge against the same was rejected by High Court. Hence the present appeal. F Dismissing the appeal, the Court HELD: 1.1 Prima facie the court has discretion to dispense with the physical presence of an accused during s.uch questioning only in summons cases and in all other G ca5es it is incumbent on the court to question the accused personally after closing prosecution evidence. All other offences generally belong to a different category altogether among which are included offences H 2 SUPREME COURT REPORTS [2008] 6 S.C.R. A punishable with varying sentences from imprisonment for ~ three years up to imprisonment for life and even right up to death penalty. [Paras 15 and 23] (9-E, F; 13-D] Usha K. Pillai v. Raj K. Srinivas 1993 (3) SCC 208- referred to B 1.2 The word "may" in clause (a) of sub-section (1) in Section 313 Cr.P.C. indicates, that even if the court does not put any question under that clause the accused cannot raise any grievance for it. But if the court fails to c put the needed question under clause (b) of the sub- section it would result in a han1icap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. [Para 21] (12-E, F] D 1.3 Section 313 Cr.P.C. itself aeclares the object in explicit language that it is "for the purpose of enabling ;.. the accused personally to explain any circumstances appearing in the evidence against him". Thus the provision is mainly intended to benefit the accused and E as its corollary to benefit the court in reaching the final conclusion. At the same time it should be borne in mind that the provision is not intended to nail him to any position, but to comply with the most salutary principle of natural justice enshrined in the maxim audi alteram F paitem. [Paras 19, 20 and 21] [11-G; 12-A, C, D] .. Jai Dev v. State of Punjab AIR1963 SC 612 - relied on. 1.4 The word "shall" in clause (b) to Section 31.3(1) Cr.P.C. is to be interpreted as obligatory on the court and G it should be complied with when i! is for the benefit of the accused. But if it works to his great prejudice and disadvantage the court should, in appropriate cases, e.g., if the accused satisfies the court that he is unable to reach the venue of the court, except by bearing huge H expenditure or that he is unable to travel the long journey SMT. KEYA MUKHERJEE v. MAGMA LEASING LIMITED 3 &ANR.. i due to physical incapacity or some such other hardship, A relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 Cr.P.C. in a substantial manner. [Para 25] [14-B, C, D] 1.5 If the accused (who is already exempted from B personally appearing in the court) makes an application ·\' to the court praying that he may be allowed to answer the questions without making his physical presence in court on account of justifying exigency the court can pass appropriate orders thereon, provided such application is accompanied by an affidavit swo.~n to by the accused c himself containing the matters (a) A narration of facts to satisfy the court of his real difficulties to be physically present in court for giving such answers.(b) An assurance that no prejudice would be caused to him, in any manner, by dispensi
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