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