Noufal v. Sub Inspector of Police, Kakoor Police Station, Kozhikode District and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ALEXANDER THOMAS** ## **WEDNESDAY, THE 15TH DAY OF OCTOBER 2014/23RD ASWINA, 1936** ## **Crl.MC.No.5689 of 2014** **---------------------------------** **CC NO.664/2010 of JUDICIAL FIRST CLASS MAGISTRATE COURT-III,KOZHIKODE** ## **PETITIONER/ACCUSED:** **------------------------------------** **NOUFAL,S/O.MOHAMMED,RAMANKUNNATH HOUSE, MADAVOOR P.O.,THAMARASSERY, KOZHIKODE DISTRICT.** **BY ADV. SRI.SUNNY MATHEW** ## **RESPONDENTS/COMPLAINANT AND STATE:** **------------------------------------------------------------------** ## **1. THE SUB INSPECTOR OF POLICE, KAKOOR POLICE STATION,KOZHIKODE DISTRICT.673001** **2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.682031.** **BY PUBLIC PROSECUTOR SRI.GITHESH.R.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15-10-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **pk** ## **Crl.MC.No.5689 of 2014** ## **APPENDIX** ## **PETITIONERS ANNEXURES** **-------------------------------------** **ANNEXURE A1 - TRUE COPY OF THE ORDER DT. 16.7.14 PASSED BY THIS HONOURABLE COURT IN CRL.M.C. NO. 2700/10.** **RESPONDENTS ANNEXURES: NIL** **------------------------------------------** **//TRUE COPY//** **P.S. TO JUDGE** **pk** ## ALEXANDER THOMAS, J. ================== ## Crl.M.C.No. 5689 of 2014 ================== Dated this the 15[th] day of October, 2014 O R D E R The petitioner, who is the accused in C.C.No. 664/2010 on the file of the Court of Judicial First Class Magistrate-III, Kozhikode, has approached this Court by instituting the above said Criminal Revision Case (Crl.M.C.) filed under Section 482 Cr.P.C. invoking the inherent powers of this Court, praying that the aforementioned Magistrate Court may be directed to waive the personal presence of the petitioner during the questioning under Section 313 of the Cr.P.C. and permit the counsel appearing for the petitioner to answer the questions that would be put during the questioning under Section 313 of the Cr.P.C., in writing. C.C.No.664/2010 aries out of crime No.106/2007 of the Kakoor Police Station, Kozhikode district for offences registered under Sections 509 and 294(b) of the IPC, with the allegation that the accused has pasted posters containing obscene contents regarding the defacto complainant as the marriage between the defacto complainant and the petitioner CRMC.5689/14 - : 2 :- did not take place. The petitioner was granted bail in the above said case. As per Annexure A1 order dated 16.7.2014 rendered by this Court in Crl.M.C.No.2700/2010, this Court had permitted the petitioner to file an application under Section 205 of Cr.P.C., for personal exemption during the recording of the evidence and further directed that the learned Magistrate shall not insist upon the personal appearance of the petitioner for filing or hearing of the said petition. Accordingly, the learned Magistrate allowed the prayer in the petition filed by the petitioner herein pursuant to Annexure A1 order and permitted him to be represented by a counsel. Now the prosecution evidence in the above case is over and the case is posted for questioning of the accused under Section 313 of the Cr.P.C. The petitioner avers that he is still working abroad and that his employer has not given leave and that the petitioner is thus unable to appear in person during the questioning under Section 313 of the Cr.P.C and the petitioner has already instructed and authorised his counsel to answer the questions that may be put during the questioning under Section 313 Cr.P.C. in writing. It is submitted by the petitioner that his presence during the questioning under Section 313 Cr.P.C. is not required as he is personally CRMC.5689/14 - : 3 :- represented by a lawyer during the recording of the evidence and the counsel is capable of giving cogent answers to the questions that would be put as part of the process envisaged under Section 313 Cr.P.C. It is in the context of these facts and circumstances that the petitioner has filed the aforementioned Crl.M.C. with the above said prayers. 2. Heard Sri.Sunny Mathew, the learned counsel for the petitioner and the learned Public Prosecutor. 3. In the case between Basavaraj R.Patel v. State of Karnataka reported in 2000 (3) KLT SN. 69, Case No.74 = 2000 (8) SCC 740, the Apex Court through its majority in a three Judge Bench, held that a pragmatic and humanistic approach is warranted in regard to special exigencies and that the word, 'shall' appearing in Section 313(1)(b) 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 is unable 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 other hardship, relieve him of such CRMC.5689/14 - : 4 :- hardship and at the same time adopt a measure to comply with the requirements in S.313 of Cr.P.C. in a substantial manner. Accordingly, it is held by the Supreme Court that If the accused (who is already exempted from 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 sworn to by the accused himself containing the following 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 dispensing with his personal presence during such questioning. (c) An undertaking that he would not raise any grievance on that score at any stage of the case. If the Court is satisfied of the genuineness of the statements made by the accused in the said application and affidavit, it is open to the Court to supply the questionnaire to his Advocate (containing the questions which the Court might put to him under S. 313 of the Code) and fix the time within which the same has to be returned duly answered by the accused together with a properly authenticated affidavit that those answers were given by the accused himself. He should affix his signature on all the sheets of the answered questionnaire. However, if he does not wish to give any answer to any of the questions, he is free to indicate that fact at the appropriate place in the questionnaire [as a CRMC.5689/14 - : 5 :- matter of precaution the Court may keep photocopy or carbon copy of the questionnaire before it is supplied to the accused for answers]. If the accused fails to return the questionnaire duly answered as aforesaid within the time or extended time granted by the Court, he shall forfeit his right to seek personal exemption from Court during such questioning. In our opinion, if the above course is adopted in exceptional exigency, it would not violate the legislative intent envisaged in S. 313 of the Code. 4. Later the Apex Court in the cases Keya Mukherjee v. Magma Leasing Limited, reported in 2008 (2) KLT 327 (SC) held in paragraphs 26 to 28 as follows: "26. If the accused (who is already exempted from 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 sworn to by the accused himself containing the following 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 dispensing with his personal presence during such questioning. (c) An undertaking that he would not raise any grievance on that score at any stage of the case. 27. If the court is satisfied of the genuineness of the statements made by the accused in the said application and affidavit, it is open to the court to supply the questionnaire to his advocate (containing the questions which the court might put to him under S.313 of the Code) and fix the time within which the same has to be returned duly answered by the accused together with a properly authenticated affidavit that those answers were - : 6 :- CRMC.5689/14 given by the accused himself. He should affix his signature on all the sheets of the answered questionnaire. However, if he does not wish to give any answer to any of the questions he is free to indicate that fact at the appropriate place in the questionnaire (as a matter of precaution the court may keep photocopy or carbon copy of the questionnaire before it is supplied to the accused for an answer). If the accused fails to return the questionnaire duly answered as aforesaid within the time or extended time granted by the court, he shall forfeit his right to seek personal exemption from court during such questioning. The Court has also to ensure that the imaginative response of the counsel is intended to be availed to be a substitute for taking statement of accused. 28. In our opinion, if the above course is adopted in exceptional exigency it would not violate the legislative intent envisaged in S.313 of the Code. 29. The above position was indicated in Basav Raj R. Patil v. State of Karnataka ((2000) 8 SCC 740). 30. It is true that in Chandu Lal Chandraker's case (supra) two Hon'ble Judges have taken a view supporting that of the appellant. It appears that in said case no reference was made to Bibhuti Bhusan Das Gupta's case (supra)." In view of the legal principles laid down by the Apex Court in the aforementioned in Basavaraj's case reported in 2000(8) SCC 740 and in Keya Mukherjee's case reported in 2008 (2) KLT 327 (SC), this Court has no hesitation to consider the present plea of the petitioner. The earlier plea of the petitioner under Section 205 of the Cr.P.C. for dispensation of personal attendance of the petitioneraccused was already favourably considered by this Court as evidenced by Annexure A1 order and the same was permitted by the learned Magistrate on the basis of the directions in Annexure A1 CRMC.5689/14 - : 7 :- order. The submission of the petitioner that he is still continuing his employment abroad and therefore he has great hardship to come to India now at this stage, prima-facie, appears to be bonafide and genuine. The plea of the petitioner has to be considered by the court below in the light of the above said dictum. Accordingly, the petitioner is directed to make an appropriate application before the court below for the aforementioned prayer to waive the personal appearance of the petitioner during the questioning under Section 313 of the Cr.P.C. and to permit the counsel for the petitioner to answer the questions that would be put during Section 313 Cr.P.C. questioning process along with an accompanying affidavit sworn to by the accused himself, containing the following 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 dispensing with his personal presence during such questioning and (c) An undertaking that he would not raise any grievance on that score at any stage of the case. The said application should be favourably considered by the Magistrate Court in the light of the specific legal principles laid down by the Apex Court in the aforementioned CRMC.5689/14 - : 8 :- decisions in Basavaraj's case reported in 2000(8) SCC 740 and Keya Mukherjee's case reported in 2008 (2) KLT 327 (SC). With these observations and directions this Crl.M.C. stands allowed as ordered above. sdk+ Sd/ALEXANDER THOMAS, JUDGE ///True copy/// P.S. to Judge