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Barjinder Singh Hamdard vs State Of Punjab & Another on 18 August, 2009

Punjab-Haryana High Court
Barjinder Singh Hamdard vs State Of Punjab & Another on 18 August, 2009
Criminal Misc. No. M-1374 of 2009                             (1)


IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH

                               Criminal Misc. No. M-1374 of 2009
                               Date of decision: August 18, 2009


Barjinder Singh Hamdard               -Petitioner

            Versus

State of Punjab & another             -Respondents


Coram       Hon'ble Mr. Justice Rajan Gupta

Present:    Mr. RS Cheema, Sr. Advocate,with
            Mr. JS Mehndiratta, Advocate, for the
            petitioner.

            Mr. Shilesh Gupta, DAG, Punjab.
            Mr. HS Sethi, Advocate, for
            respondent No.2.


Rajan Gupta, J.

The petitioner is Managing Editor of a publication known as

Daily Ajit, a Punjabi newspaper. A complaint was lodged against him by

complainant Dr.Gopal Raj (respondent No.2 herein) alleging that he had

been defamed by an article published in the newspaper Daily Ajit dated

May 3, 2003 and the petitioner was responsible for the same. According to

the complainant, the news item with the title “Bimar Pya Hai Dorangla Da

Govt. Hospital” was derogatory in nature. It had defamed the complainant

in the eyes of general public, particularly his department.

Pursuant to the complaint made by Dr. Gopal Raj, the petitioner

along with two co-accused was summoned to face trial vide order dated 15th
Criminal Misc. No. M-1374 of 2009 (2)

April, 2004 by the Additional Chief Judicial Magistrate, Gurdaspur. Later ,

the petitioner moved an application for exemption from personal appearance

before the trial court on certain grounds. The same was allowed vide order

dated 6-9-2006 subject to the condition that the petitioner would appear as

and when required by the Court.

At the stage of examination under Section 313 Cr.P.C., the

petitioner again sought exemption from personal appearance inter alia on

the grounds that he was suffering from disc problem and was confined to

bed. This apart, being Managing Director of newspaper Daily Ajit, he was

highly occupied with his duties. The said application was, however,

rejected by the Judicial Magistrate Ist Class, Gurdaspur vide order dated 18-

12-2008. The order has been impugned in the present petition.

Mr. Cheema, learned Senior Advocate has argued that the

order passed by the learned Magistrate is factually incorrect as it was

observed therein that the petitioner’s movement was not restricted as he was

going to many places being Member of Parliament and Chief Editor of a

newspaper. According to the counsel, petitioner who was a Member of

Rajya Sabha, resigned therefrom in December 2000 and he is Managing

Editor of the newspaper in question and not the Chief Editor. This apart,

learned counsel has emphasized that in a summons case, where the court

had dispensed with personal attendance of the accused during the trial, it

may also dispense with his appearance at the stage of recording statement

under Section 313 in view of proviso to Section 313(1)(b) Cr.P.C. Counsel

has submitted that in view of the word ‘may’ used in the proviso, the
Criminal Misc. No. M-1374 of 2009 (3)

legislative intent is that in less serious matters, personal appearance of the

accused can be dispensed with even at the stage of statement under Section

313 Cr.P.C.

Learned counsel for respondent No.2 on the other hand has

submitted that personal appearance of the accused at the stage of recording

statement under Section 313 Cr.P.C. is mandatory in view of the word ‘shall’

used in clause (b) to Section 313 (1) of the Code. The same has to be

interpretted as obligatory. According to the counsel, claim of the petitioner

that he is indisposed or suffering from any medical problem that would

impede his movement, is false.

I have heard learned counsel for the parties and given careful

thought to the facts of the case.

It is evident that personal appearance of the petitioner was

exempted vide order dated 6-9-2006. Thereafter he was allowed to appear

through his counsel. However, at the stage of recording of statement under

Section 313 Cr.P.C., the question arose whether the petitioner could still

claim exemption from personal appearance.

In the judgment reported as Bibhuti Bhusan Das Gupta v.

State of West Bengal, AIR 1969 SC 381 while dealing with Section 342 of

the Criminal Procedure Code, 1988, it was held that after close of

prosecution evidence, the accused must be questioned and his pleader could

not be examined in his place.

In a later case, however, reported as Chandu Lal Chandraker

v. Puran Mal, 1988 Supp SCC 570, the Apex Court was pleased to
Criminal Misc. No. M-1374 of 2009 (4)

dispense with personal appearance of the accused for recording statement

under Section 313 Cr.P.C. This direction was given in view of accused’s

undertaking that he would not make any statement under Section 313 and

would not later contend that any prejudice had been caused to him on

account of his non examination.

However, in the judgment reported as Keya Mukherjee Vs.

Magma Leasing Limited and another, (2008) 8 SCC 447, the apex court

considered various decisions pertaining to import of Section 313 Cr.P.C. It

held that in Chandu Lal Chandraker’s case (supra), no reference was made

to the judgment in Bibhuti Bhusan Das Gupta’s case (supra). Thus general

rule that the accused would have to remain present at the stage of statement

under Section 313 was affirmed. (Para 21).

However, in respect of less serious offences the court observed

as follows:

“22. The one category of offences which is
specifically exempted from the rigour of Section 313(1)(b) of
the Code is “Summons cases.” It must be remembered that
every case in which the offence triable is punishable with
imprisonment for a term not exceeding two years is a
“summons case.” Thus, all other offences generally belong to a
different category altogether among which are included
offences punishable with varying sentences from imprisonment
for three years up to imprisonment for life and even right up to
death penalty. Hence there are several offences in that category
which are far less serious in gravity compared with grave and
very grave offences. Even in cases involving less serious
offences, cannot the court extent a helping hand to an accused
who is placed in a predicament deserving such a help?”

Criminal Misc. No. M-1374 of 2009 (5)

It is clear that in view of the word ‘may’ used in proviso to

Section 313(1)(b) of the Code, a Magistrate in a given case may or may not

allow the prayer of the accused for exemption from personal appearance

under Section 313 Cr.P.C. While passing an order thereunder, the

Magistrate exercises a judicial discretion. He has to be conscious of two

factors while deciding such a plea, one that it is a summons case, two that

personal appearance of the accused remained exempted throughout the trial.

If still the Court is of the opinion that personal appearance of the accused is

necessary, needless to say, it would be free to ask him to appear before it.

In the impugned order, however, while rejecting application

for exemption from personal appearance at the stage of recording statement

under Section 313 Cr.P.C., either the trial court was not conscious of

proviso to Section 313(1)(b) or arguments with regard to the same were

never addressed before it. The order is silent on the question whether the

court required presence of the accused to answer certain questions having

arisen in the course of trial or his presence was necessary for any other

reason such as to see his demeanor. The trial court merely rejected the

application on the ground that the medical certificate relating to physical

inability of the petitioner to move around was not believable, particularly

when he may be required to travel frequently in view of his

responsibilities. The trial court decided the question of exemption from

personal appearance at the stage of statement under Section 313 Cr.P.C.

without particularly referring to proviso to Section 313(1)(b) Cr.P.C. i.e.

whether the petitioner was entitled to exemption in view of the said proviso
Criminal Misc. No. M-1374 of 2009 (6)

or not. The proviso in fact lays down that in a summons case, where the

Court has dispensed with personal attendance of the accused, it may also

dispense with his examination under clause (b). Since there is no

discussion in the impugned order in terms of the proviso, the impugned

order is hereby set-aside. The matter is remitted back to the trial Court for

decision afresh.

Counsel for the parties shall be at liberty to raise all their pleas,

including the judgments they may rely upon, before the trial court with

regard to the questions involved. They shall remain present before the said

court on September 14, 2009.

The petition stands allowed in the aforesaid terms.

[Rajan Gupta]
Judge
August 18, 2009
‘ask’

To be referred to Reporter: Yes

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