Rafeeque S/O Saidu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 19[TH] DAY OF OCTOBER 2023 / 27TH ASWINA, 1945** **CRL.REV.PET NO. 872 OF 2011** **AGAINST THE ORDER/JUDGMENT CRA 319/2010 OF ADDITIONAL DISTRICT COURT (ADHOC), MANJERI** ## **CC 594/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PARAPPANANGADI REVISION PETITIONER/S:** RAFEEQUE, S/O.SAIDU, MOOKKAN HOUSE, TIRURANGADI, KACHADI, MALAPPURAM DISTRICT. BY ADVS. SRI.K.P.SUDHEER SRI.SUMODH MADHAVAN NAIR ## **RESPONDENT/S:** STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, REPRESENTING SUB INSPECTOR OF POLICE,, TIRURANGADI POLICE STATION, P.O.TIRURANGADI-, 676306, MALAPPURAM DISTRICT. ## **OTHER PRESENT:** SR PP SMT SEETHA S THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 19.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.REV.PET NO. 872 OF 2011 2 (Dated this the 19[th] day of October, 2023) ## **ORDER** The revision petition is filed questioning the correctness and legality of the judgment in Crl.A. No.319/2010 of the Court of Sessions (Adhoc-I), Manjeri Division (Appellate Court) allowing the appeal by way of remand and directing the Court of the Judicial Magistrate of First Class-I, Parappanangadi (Trial Court), to question the revision petitioner/accused under Sec.313 of the Code of Criminal Procedure (in short, 'Code') in CC No.594/2006 and decide the complaint afresh. ## Facts in brief 2. The prosecution case is that, on 27.03.2006, the Tirurangadi Police got information that the accused was in possession of obscene compact disc, for the purpose of hire and sale, in a shop named ‘Choice VCD Club’ situated at Tirurangadi. The Tirurangagdi Police, registered Ext.P5 FIR and arrested the accused. The Police after investigation filed their final report before CRL.REV.PET NO. 872 OF 2011 3 the learned Magistrate alleging the accused to have committed the offence under Sec.292 (2) (a) of the Indian Penal Code ('IPC', for brevity). 3. The accused denied the substance of accusation read over to him. In the Trial, the prosecution examined PWs 1 to 9 and marked Exts.P1 to P6 and MO1 in evidence. 4. The learned Magistrate, after analysing the materials placed on record, found the accused guilty and convicted and sentenced him to undergo simple imprisonment for a period of three months and pay a fine of Rs.1,000/-, and in default to undergo simple imprisonment for a further period of fifteen days. 5. Aggrieved by the said judgment, the accused preferred Crl. A No. 319/2010 before the Appellate Court. 6. The Appellate Court, on a consideration of the materials on record, found that the accused was not CRL.REV.PET NO. 872 OF 2011 4 questioned under Sec.313 of the Code. Therefore, the proceedings from that stage was vitiated. Accordingly, the learned Sessions Judge directed the learned Magistrate to question the accused under Sec.313 of the Code and pass a fresh judgment. 7. It is challenging the order of remand, the present revision petition is filed. 8. Heard; Sri. K.P Sudheer, the learned counsel appearing for the revision petitioner and Smt.Seetha.S, the learned Public Prosecutor appearing for the respondent/State. 9. The learned Counsel appearing for the revision petitioner argued that the Appellate Court has misread the materials on record and failed to understand Sec.313 of the Code in its proper perspective. He contended that, an offence under Sec.292 of the IPC has to be tried as a summons case. Therefore, in view of the proviso to subsec.(1) of Sec.313 of the Code, the Court has the power CRL.REV.PET NO. 872 OF 2011 5 to dispense with the personal appearance of the accused and also dispense with his examination under clause (b) of sub-sec.(1) of Sec.313. He drew the attention of this Court to CMP No.3439/2009 dated 30.12.2009, which was filed by the counsel for the accused seeking dispensation of his examination under clause (b) of subsec.(1) of Sec.313. The learned Magistrate had allowed the said application. Hence, there was no necessity for the learned Sessions Judge to remand the matter back to the learned Magistrate Court to conduct the examination under the above provision. Hence, he submitted that the impugned judgment be set aside by allowing the petitioner and acquitting the accused. 10. Is there any illegality, impropriety or irregularity in the judgment passed by the Appellate Court? ## 11. Section 313 of the Code reads as follows:- “313. Power to examine the accused.—(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court— (a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary; (b) CRL.REV.PET NO. 872 OF 2011 6 **shall after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally on the case: Provided that in a summons-case where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).** (2) No oath shall be administered to the accused when he is examined under sub-section (1). (3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them. (4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. [(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section”. (ephasis given) 12. An offence under Sec.292 of the IPC is punishable for a term which may extend to two years or with fine which may extend to Rs.2,000/- in the event of first conviction and in the event of the second conviction, the accused is liable to be punished for a term, which may extend to five years and the fine may extend to Rs.5,000/-. 13. A summons case is defined under Sec.2(w) of the Code that is a case relating to offence not being a warrant case. CRL.REV.PET NO. 872 OF 2011 7 14. A warrant case is defined under Sec.2(x) of the Code which states that it is a case relating to offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. Therefore, when the punishment prescribed is two years and below, it is necessarily a summons case. 15. On a reading of Ext.P5 FIR, it is evident that the accused has been charged with the above offence for the first time. Thus necessarily the proceedings initiated in C.C.No.594/2006 is a summons case. 16. The examination of the records reveal that the accused was employed abroad and his personal attendance was dispensed with as provided under Section 205 of the Code. 17. At the Sec.313 questioning stage, the counsel for the accused filed C.M Appln. No.3434/2009 seeking to dispense with the examination of the accused under clause (b) of subsection (1) of Section 313 of the Code. 18. The above application was also allowed by the CRL.REV.PET NO. 872 OF 2011 8 learned Magistrate. It was in the above background the learned Magistrate did not question the accused under Section 313 of the Code. 19. Unfortunately, the above aspect was neither brought to the notice of the Appellate Court nor did the Appellate Court ascertain the matter from the records. 20. In **Basavaraj R. Patil and others vs. State of Karnataka and others** [(2000) 8 SCC 740] the Honourable Supreme Court observed as under: “19. Thus it is well settled that the provision is mainly intended to benefit the accused and as its corollary to benefit the court in reaching the final conclusion. 20. 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 partem. The word “may” in clause (a) of sub-section (1) in Section 313 of the Code indicates, without any doubt, that even if the court does not put any question under that clause the accused cannot raise any grievance of it. But if the court fails to put the needed question under clause (b) of the sub-section it would result in a handicap to the accused and he can legitimately claim that no evidence, without affording him the opportunity to explain, can be used against him. It is now well settled that a circumstance about which the accused was not asked to explain cannot be used against him. 21. But the situation to be considered now is whether, with the revolutionary change in technology of communication and transmission and the marked improvement in facilities for legal aid in the country, is it necessary that in all cases the accused must answer by personally remaining present in Court. We clarify that this is the requirement and would be the general rule. However, if remaining present involves CRL.REV.PET NO. 872 OF 2011 9 undue hardship and large expense, could the Court not alleviate the difficulties. If the court holds the view that the situation in which he made such a plea is genuine, should the court say that he has no escape but he must undergo all the tribulations and hardships and answer such questions personally presenting himself in court. If there are other accused in the same case, and the court has already completed their questioning, should they too wait for long without their case reaching finality, or without registering further progress of their trial until their co-accused is able to attend the court personally and answer the court questions? Why should a criminal court be rendered helpless in such a situation? 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, can not the court extend a helping hand to an accused who is placed in a predicament deserving such a help?” (emphasis given) ## 21. Again in **TGN Kumar vs. State of Kerala and** ## **others** [2011 (1) KHC 142] the Honourable Supreme ## Court has held as under: **“13.On the plain language of Section 313, it is evident that in a summons case, when the personal appearance of the accused has been dispensed with under Section 205 of the Code, a discretion is vested in the Magistrate to dispense with the rigour of personal examination of the accused under Section 313 of the Code as well”.** CRL.REV.PET NO. 872 OF 2011 10 22. A reading of the above provision and its interpretation in the aforesaid precedents make it explicitly clear that, in a summons case, where the Court has dispensed with the personal attendance of the accused under Section 205 of the Code, the accused can also seek for dispensation of his examination under clause (b) of subsection (1) of Section 313 of the Code. 23. Once an accused seeks for dispensation of his examination under clause (b) of subsection (1) of Section 313 of the Code, he cannot take a volte face and allege that his non-examination under Section 313 of the Code has caused prejudice to him. 24. It is well-nigh settled only when the accused substantiates that the non-examination of the accused under Section 313 of the Code has resulted in failure of justice, shall the Appellate Court/Revisional Court remand the matter back to the Trial Court to the stage of Section 313 of the Code. CRL.REV.PET NO. 872 OF 2011 11 25. In the instant case, as the accused had on his own free will and volition sought for dispensation of his personal attendance and dispensation of his examination, he cannot be heard to state that there has been failure of justice due to his non examination under the said provision. 26. In the above conspectus, I hold that the Appellate Court has gone wrong by finding that prejudice has been caused to the accused in his nonexamination under Section 313 of the Code. Consequently, I hold that the impugned judgment suffers from errors of law and fact warranting the impugned judgment to be set aside and directing the Appellate Court to consider Crl.A.No.319/2010 on its merits and in accordance with law. 27. In the result; - (i) The revision petition is partly allowed; - (ii) The impugned judgment in Crl.A.No.319/2010 is set aside. CRL.REV.PET NO. 872 OF 2011 12 - (iii) The Court of Sessions, Manjeri is directed to dispose of Crl.A.No.319/2010, in accordance with law; - (iv) The parties/their counsel are directed to appear before the Appellate Court on 20.11.2023; - (v) The Registry is directed to forthwith forward a copy of this order with the lower court records to the Appellate Court for compliance. - (vi) As the appeal is of the year 2010, the Appellate Court is directed to dispose of the appeal as expeditiously as possible. Sd/- **C.S.DIAS JUDGE** rkc/19.10.23