Track 1 vs Superintendent of Police
| Case Name: | Track 1 vs Superintendent Of Police |
| Date of judgment: | 22 April, 2013 |
| Court: | THE HIGH COURT OF KERALA AT ERNAKULAM |
| Case Type: | Criminal Appeal |
| Case Number: | Crl.MC.No. 1798 of 2013 |
| Appellant: | SAJEEV – AGAINST THE ORDER IN SC 1075/2007 of ADDITIONAL DISTRICT COURT Fast Track 1, TRIVANDRUM |
| Respondent: | State of Kerala |
| Bench: | MRS. JUSTICE MARY JOSEPH |
| Statues Referred: | Section 313(1)(b) of the Criminal Procedure Code (Cr.P.C) Section 317 of the Cr.P.C Section 304 of the Cr.P.C Section 313(5) of the Cr.P.C |
Facts Of the Case:
The case was registered as S.C No.1075/2007 and is being heard in the Sessions Court at Thiruvananthapuram. The petitioner is the 2nd accused in the case, along with the 3rd accused. The 1st accused is also involved in the case.
The allegation against the petitioner (2nd accused) is that he, along with the 3rd accused, sold dinner sets stolen by the 1st accused on 23rd June 1999 from the Kowdiar Palace to multiple persons during the course of his employment there as a store-keeper.
The trial in the case commenced, and the prosecution witnesses have been examined. The case was posted for the examination of the accused under Section 313(1)(b) of the Code of Criminal Procedure (Cr.P.C).
The petitioner, at the relevant time, was employed in Qatar and filed an application (Crl.M.P No.1383/2013) requesting to be exempted from being personally present for examination under Section 313(1)(b) Cr.P.C.
The reason given for the exemption was his urgency to return to Qatar to rejoin his job. The petitioner’s application for exemption was dismissed by the Additional District and Sessions Judge, Thiruvananthapuram, on 22nd April 2013, leading the petitioner to file the current application under Section 482 of Cr.P.C.
The petitioner argued that the court has the authority to grant exemption from personal appearance during the examination under Section 313(1)(b) Cr.P.C, citing certain judgments to support his claim. The Public Prosecutor argued against granting such exemption, relying on another judgment to counter the petitioner’s argument.
The learned Sessions Judge, after considering the arguments and precedents, opined that the court does not have the authority to dispense with the personal presence of the accused during the examination under Section 313(1)(b) Cr.P.C.
The Sessions Judge cited the nature and volume of evidence available on record and the importance of the accused’s personal explanation as reasons for disallowing the petitioner’s plea for exemption.
The petitioner challenged the Sessions Judge’s order and sought to quash the dismissal of his application for exemption from personal appearance during the examination.
Arguments:
The petitioner, the second accused, seeking exemption from being personally present in court during the examination under Section 313(1)(b) of the Code of Criminal Procedure (Cr.P.C.). The petitioner’s primary reason for seeking exemption is his urgency to return to his job in Qatar, where he was employed at the relevant time.
The petitioner’s counsel relied on the judgments of Basavaraj R. Pattil v. State of Karnataka and Shaji v. State of Kerala to argue that the Sessions Court has the authority to grant such exemption and allow the counsel to answer the questions on the petitioner’s behalf during the examination.
The petitioner contended that Section 313(1)(b) Cr.P.C. confers a right on the accused to explain the circumstances appearing against him in the prosecution evidence, and it is a matter of discretion for the court to allow the accused to be represented by counsel during the examination.
The petitioner also invoked constitutional provisions, including Article 22(2), which guarantees the right of an arrested person to consult and be defended by a lawyer of their choice, and Article 39A, which obliges the State to provide free legal aid to ensure justice is not denied to any citizen by reason of economic or other disabilities.
The petitioner argued that the court should consider his financial background and the obligation of the State to provide legal aid when deciding on the exemption from personal appearance during the examination.
The argument presented is centered around the discretionary power of the court to either grant or deny the petitioner’s request for exemption from personal appearance during the examination under Section 313(1)(b) of Cr.P.C. The contention is that the provisions of the Cr.P.C., particularly Section 205, 304, 317, and 273, grant ample discretion to the court to dispense with the personal presence of the accused during inquiry or trial.
The petitioner argues that it is not mandatory for the accused to be personally present during any inquiry or trial and that the court has the authority to grant exemption based on the reasons provided by the accused. The court is urged to consider the circumstances brought before it by the accused and to analyze if insisting on personal attendance would cause greater disadvantages to the accused.
It is highlighted that the purpose of the examination under Section 313(1)(b) of Cr.P.C. is to provide an opportunity for the accused to explain the incriminating circumstances brought in evidence by the prosecution. If the accused is denied the opportunity to explain, the prosecution cannot rely on those circumstances for the purpose of obtaining a conviction.
The petitioner also emphasizes the constitutional provisions, such as Article 22(2) and Article 39A, which recognize the accused’s right to legal aid and representation. Therefore, if the accused is economically incapacitated to engage a lawyer, it is the duty of the court to provide legal aid and representation
The petitioner argues that the mere omission of the court to put some questions during the examination of the accused under Section 313(1)(b) of Cr.P.C. would not necessarily vitiate the trial. The trial would be considered proper unless the accused can establish that the omission resulted in injustice or prejudice to him. If the accused can show that he had a reasonable explanation for material incriminating evidence and that the court’s failure to question him on that aspect led to his inability to explain it, he can raise this issue before the appellate court. In such cases, the conviction may be rendered unsustainable.
The petitioner also refers to the importance of the examination of the accused under Section 313(1)(b) Cr.P.C. The purpose of the examination is not only to give the accused an opportunity to explain incriminating circumstances against him but also to help the court in the appreciation of the entire evidence presented during the trial.
The petitioner cites decisions from the Apex Court, including Basavaraj R. Pattil and others v. State of Karnataka and others, to argue that there are divergent views on the issue. However, the majority view in the Basavaraj case supported the idea that the court’s omission to put certain questions during the examination would not necessarily vitiate the trial.
The petitioner also refers to the decision in Ghulam Din Buch v. State of Jammu and Kashmir, where it was held that if the accused is denied the opportunity to answer material aspects in the evidence, he can raise the issue before the appellate court, and if the omission resulted in injustice, the conviction may be rendered unsustainable.
The Public Prosecutor argued that the court has no authority in a Sessions trial case to exempt the personal attendance of the accused during the examination under Section 313(1)(b) of Cr.P.C. The learned Session’s Judge dismissed the petitioner’s plea for exemption, basing the decision on the dictum laid down in Anbazhagan v. Superintendent of Police, which held that personal attendance of the accused is required during the examination.
Judgement:
The court has allowed the Criminal Miscellaneous Case (Crl. M.C.) and made the following orders:
- The impugned order passed by the learned Additional Session’s Judge in Crl.M.P No.1383 of 2013 in S.C No.1075 of 2007 is quashed, meaning the order disallowing the accused’s prayer to abstain from personal appearance is invalidated.
- The matter is sent back to the learned Additional Session’s Judge for reconsideration of Crl. M.P. No. 1383 of 2013 in S.C. No. 1075 of 2007 in light of the discussions in this judgment. The Judge is required to reevaluate the accused’s request to be exempted from personal appearance during the examination under Section 313 Cr.P.C based on the legal principles and guidelines provided in the judgment.
- The learned Additional Session’s Judge is directed to dispose of Crl.M.P.No.1383 of 2013 in S.C.No.1075 of 2007 at the earliest possible opportunity, not later than one month from the date of receipt of a copy of the judgment, after giving reasonable opportunity for both parties to be heard.
- The Judge is also instructed to make every effort to dispose of S.C. No 1075 of 2007 within a period of two months from the date of passing the order in Crl.M.P.No.1383 of 2013.
- Both parties involved in S.C.No.1075/2007 are required to cooperate fully with the court’s efforts to comply with the directions given in this judgment for the expeditious disposal of the case.
Overall, the court has set aside the previous order, provided guidelines for reconsideration, and set time limits for further proceedings to ensure a prompt resolution of the matter.
Conclusion:
The petitioner in the case sought exemption from personal appearance during the examination under Section 313(1)(b) of the Criminal Procedure Code (Cr.P.C). The petitioner’s contention was that being employed abroad, he would face undue hardship and incur significant expenses to attend the court in person. He argued that his counsel, who was engaged to represent him, could adequately defend him during the examination. The petitioner cited the precedent of Anbazhagan v. Superintendent of Police, where the court allowed exemption from personal appearance in exceptional circumstances. Additionally, the petitioner relied on the newly incorporated Section 313(5) of the Cr.P.C, which permitted the filing of a written statement as sufficient compliance for the examination. The petitioner argued that the court overlooked relevant provisions of the Cr.P.C and the purpose of the newly added Section 313(5), which aimed to eliminate delay in trials. The petitioner proposed guidelines based on the Apex court’s decision in Basavaraj’s case to address the situation where personal appearance could be dispensed with. The court found that the impugned order disallowing the petitioner’s request was unsustainable and suffered from illegality and impropriety. It quashed the order and remitted the matter back to the lower court for reconsideration in light of the discussions in the judgment. The lower court was directed to dispose of the matter within a specific time frame, and both parties were urged to cooperate in the process.
Written by Shobhita Shrivastava intern under legal vidhiya.
