HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition Nos.6510 and 6511 of 2009 Dated : 20.08.2009 Between : U.Eranna ….. Petitioner a n d The State of A.P. ….. Respondent HON’BLE SRI JUSTICE G.BHAVANI PRASAD Criminal Petition Nos.6510 and 6511 of 2009 COMMON ORDER: Heard Sri P.Vamsheedhar Reddy, learned counsel representing Sri B.Sarvotham Reddy, learned counsel for the petitioner in both the cases, and Sri A.Ramesh, learned counsel representing the learned Public Prosecutor, for the sole respondent in both the cases. The petitioner is accused in S.T.C.Nos.27 of 2006 and 232 of 2005 on the file of the Special Judicial Magistrate of II Class, Adoni, in respect of the alleged offences under Section 9(1) of the A.P. Gaming Act. The said cases are at the stage of examination under Section 313 of the Code of Criminal Procedure and the petitioner filed Crl.M.P.Nos.107 and 109 of 2009 respectively to dispense with his personal appearance and permit him to be represented through his counsel to answer the questions during his examination under Section 313 of the Code of Criminal Procedure. Those petitions were dismissed by the learned Magistrate by identical orders dated 31.07.2009. The petitioner claims exemption from appearance due to the fact that he was involved in a car accident on the national high way very recently and sustained grievous injuries all over his body and more particularly suffered fractures on both legs at knee and hip. He further claimed that he is undergoing treatment, but it became very hard and physically inconvenient for him to be present before the Court. The petitioner also stated that in summons cases being tried as per summary procedure, the physical presence of the petitioner need not be mandatorily insisted upon and he also undertook by his application to be bound by all the acts of his representative permitted to answer the questions on his behalf. The impugned orders show that the learned Additional Public Prosecutor appearing for the prosecution merely endorsed that he was opposing both the applications, but obviously he neither filed any counters to the request nor adduced any evidence to discredit the claims of the petitioner. Still, the learned Magistrate has relied on the absence of any documentary evidence to show that the petitioner is bed ridden and the observation of the learned Magistrate that the petitioner is entitled to seek dispensing with his presence during the examination under Section 313 of the Code of Criminal Procedure only if he was allowed to attend by a Special Vakalath holder since the beginning, does not appear to have any statutory or precedential basis. The learned Magistrate also referred to the earlier conduct of the petitioner about filing petitions to condone his absence since several years, but the Court itself obviously condoned the absence of the petitioner on those occasions on such petitions and if the Court itself found the acceptance of such requests to be justifiable on those occasions, the same cannot be made a ground to reject the present request of the petitioner. The learned Magistrate, of course, rightly referred to the affidavit filed by the petitioner before the Court not being attested, but he could have given an opportunity in the interests of justice requiring the petitioner or his counsel to make good the omission and come up with an appropriate application. Rules of procedure are intended to sub-serve the cause of justice and they are not intended to punish the parties with savage results for any technical lapses. The claim of the petitioner that he was involved in a serious motor accident and he received grievous injuries all over his body, more particularly, fractures on both the legs at knee and hip is not factually denied even by the prosecution and if the accident and injuries were true and were uncontroverted, the further claim of the petitioner that he is undergoing treatment and that it would be very hard and physically inconvenient for him to be physically present in the Court is in tune with the ordinary or natural course of human events in case of such accident. If so, on facts, there appears every justification for the petitioner to seek exemption from his appearance before the Court during examination under Section 313 of the Code of Criminal Procedure. Insofar as the question whether the said representation of the accused by some other person during an examination under Section 313 of the Code of Criminal Procedure is permissible, the learned counsel for the petitioner relied on Basavaraj R.Patil v. State of Karnataka[1] wherein the Apex Court advised that a pragmatic and humanistic approach is warranted in regard to special exigencies. The word ‘shall’ in Section 313 (1) of the Code of Criminal Procedure has to be so implemented to avoid great prejudice and disadvantage to the accused, who is unable to reach the venue of the Court due to physical incapacity or some other hardship. The Apex Court directed that a measure to comply with the requirements of Section 313 of the Code of Criminal Procedure in a substantial manner has to be adopted in such an event and further directed that if such an application is made to exempt an accused from physical presence in Court on account of any justifying exigency, the application should be accompanied by an affidavit sworn by the accused himself containing a narration of the facts to satisfy the Court of the real difficulties and assurance that no prejudice will be caused to him by dispensing with the appearance and an undertaking not to raise any grievance on that score at any stage of the case. Then, if the Court is satisfied about the genuineness of such statements, it is open to the Court to supply the questionnaire to the Advocate for the accused, fix time within which it has to be returned duly answered by the accused along with a properly authenticated affidavit that those answers have been given by the accused himself with his signatures on all the papers and if the accused fails to return the questionnaire within time, he shall forfeit his right to seek personal exemption. Thus, the procedure, which had been mandated by the Supreme Court has to be adopted in case of special exigencies, has to be permitted to be adopted in the present case also and while setting aside the impugned orders in question, the trial Court should be directed to follow this procedure before permitting the petitioner to answer the questions under Section 313 of the Code of Criminal Procedure in his absence. Therefore, the orders in Crl.M.P.No.107 of 2009 in S.T.C.No.27 of 2006 and Crl.M.P.No.109 of 2009 in S.T.C.No.232 of 2005 on the file of the Special Judicial Magistrate of II Class, Adoni, are set aside and in both the cases the trial Court shall require the petitioner/accused to make an application afresh about his request to answer the questions without insisting his physical presence in the Court on account of the justifying exigencies accompanied by an affidavit sworn by the accused himself containing a narration of the facts of his real difficulties to be physically present before the Court, an assurance of absence of prejudice in any manner by dispensing with his personal presence for such examination and an undertaking that the accused will not raise any grievance on that score at the future stages of the case. On receiving such an application with such an affidavit, the trial Court on satisfying itself about the correctness of the statement of the petitioner on that score, shall supply the questionnaire under Section 313 of the Code of Criminal Procedure to the learned counsel appearing for the petitioner before the trial Court and fix the time within which the questionnaire should be returned duly answered by the accused together with a properly authenticated affidavit that those answers were given by the petitioner himself with the signatures of the petitioner on all the papers of the questionnaire. It is open to the petitioner also to indicate if he is not willing to answer any question in the questionnaire and if he fails to return the questionnaire duly answered as stated above within the time granted by this Court, the trial Court can forfeit the right of the petitioner to seek an exemption from personal examination before the Court. The criminal petitions are ordered accordingly. ______________________ G.BHAVANI PRASAD, J 20th August, 2009 SUR [1] (2000) 8 SCC 740