The applicant challenged the Metropolitan Magistrate's order allowing the accused to record a Section 313 CrPC statement in absence. The High Court relied on Supreme Court precedents regarding humanitarian dispensation of attendance and held the subsequent order valid, dismissing the challenge.
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apl-450-13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
rpa
CRIMINAL APPLICATION NO.450 OF 2013
Ajay Ganesh Ubale .. Applicant Vs. Vir Sanghvi & Anr. .. Respondents
Mr. Vijay Hiremath, Advocate for the Applicant.
Mr. Shirsh Gupte, Senior Advocate a/w. Mr. Mihir Gheewala & Ameya Deosthan i/b. M/s. Hariani & Co., Advocate for Respondent No.1.
Mr. D. R. More, A.P.P. for Respondent No.2 – State.
CORAM : K. U. CHANDIWAL, J.
DATED : JULY 16, 2013.
P.C. :
Heard.
2 The accused no.2 – respondent made an application in C.C.No.163359/SS/2010 for dispensing with personal attendance for recording statement under Section 313 of Code of Criminal Procedure, the learned Judge entertained the same, allowed such exemption for recording statement, is questioned by original complainant.
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3 In order to stress his point the learned counsel placed reliance to the Judgment of Hon'ble Supreme Court in Keya Mukherji V/s. Megma Leasing Limited & Anr1 . The said Judgment was dealing with offence punishable under Section 138 of the Negotiable Instrument Act, 1881 wherein Hon'ble Lordship of the Supreme Court indicated that a pragmatic and humanistic approach is warranted in regard to such special exigencies. The word “shall” in Clause (b) to Section 313 (1) of the Code is to be interpreted as obligatory on the Court and it should be complied with when it is for the benefit of the accused. But, if it works to his great prejudice and disadvantage the Court should, in appropriate cases, if the accused satisfies the Court that he was unable to reach the venue of the Court, except by bearing huge expenditure or that he is unable to travel the long journey due to physical incapacity or some such other hardship, relieve him of such hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. In paragraph No.26 of the said Judgment, the Supreme Court directed three assurances from such accused who seek exemption.
1 AIR 2008 SC 1807.
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4 Basically, the matter in question is a summons case,
effect of Section 313 1(b) proviso has his impact carving a obligation to accept such statement in absence of accused – applicant. It is pertinent, in the present case, the personal attendance of the accused – applicant has been dispensed with by this Court in earlier round of litigation when there was a challenge to the process, by order dated 28th April, 2005 (in Criminal Application No. 5839 of 2004). Later on 28th November, 2011 in Criminal Application No.956 of 2011, the absence of the accused – respondent on 5th May, 2011 was not entertained by the learned Judge as there was persistent noncompliance, the condition imposed on not to dispute identity.
5 The subsequent order dated 28th November, 2011 to which the learned counsel for the Applicant gave reference, will not change the colour and complexion of issue at hand.
6 In the application seeking benefit of Section 313 of the Code of Criminal Procedure in paragraph No.4 an unequivocal assurance/undertaking is recorded by accused no.2 to abide with the terms of condition narrated in the case of
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Basavraj R. Patil V/s. State of Karnataka & Ors.2 It was further undertaken that he was not to raise any grievance at any stage of the case. He further undertook that no prejudice would be caused to him in any manner if his personal presence is dispensed with during recording of statement under Section 313 of the Cr.P.C.
7 The apprehension nursed by original complainant that there may be other circumstance to be put to the accused – respondents, which would be facilitated only by his personal interview, is certainly misplaced as learned Judge, under the statutory arrangement, was expected to put the circumstance to the accused – applicant which necessarily should be in tune with the evidence and the documents. I do not see any error in the order of the learned Metropolitan Magistrate 16th Court at Ballard Pier, Mumbai entertaining the application under Section 313 of Cr. P. C. Criminal application is dismissed.
(K. U. CHANDIWAL, J.)
- (2000) 8 SCC 740
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3 issues framed by the court
Whether the learned Metropolitan Magistrate erred in entertaining an application for dispensing with the personal attendance of the accused while recording a statement under Section 313 of Cr.P.C.
Whether the accused had provided adequate assurance to dispense with their personal presence as required by precedent for Section 313 proceedings.
Whether the original complainant had valid grounds to object to the exemption from personal attendance granted in earlier litigation.
Colour shows how this judgement treated each authority
Keya Mukherji V/s. Megma Leasing Limited & AnrRelied on¶16
AIR 2008 SC 1807 · Who else cites this
Basavraj R. Patil V/s. State of Karnataka & Ors.Relied on¶26
(2000) 8 SCC 740 · Who else cites this
1 provisions across 1 enactments
Ajay Ganesh Ubale
Vir Sanghvi & Another
K. U. Chandiwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
