1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3256 OF 2010 WITH CRTIMINAL APPLICATION NO. 3257 OF 2010 M/s. Metro Exporters Ltd. ..... Applicant versus The State of Maharashtra & ors........ Respondents Mr. A.H.H. Ponda a/w Faisal Sayyad & Mayur Bhojwani i/b M/s. Manilal Kher Ambalal & Co. adv. For the Applicant Mr. Saikumar Pathrude for the respondent no.6 Mrs. M.R. Tidake APP for State, CORAM: V. M. KANADE, J. DATED : 20th October, 2010 P.C.: 1. Heard the learned counsel appearing for the applicant and the learned counsel for the respondent no.6 and the learned APP for the State. 2. The grievance of the applicant who is the original complainant is that, on an application filed by the respondent no.6 accused seeking exemption from personal appearance and seeking further permission to record his statement under sec. 313 through his advocate, the learned Magistrate after granting exemption, was further pleased to dispense with the recording of statement 2 under sec. 313 Cr.P.C. by the respondent no.6 accused. 3. Mr. Ponda, the learned counsel appearing on behalf of the applicant submitted that after the judgment of the Apex Court in the case of Keya Mukherjee Vs. Magma Leasing Ltd. & anr. reported in AIR 2008 S.C. 1807, the parliament amended the provisions of sec. 313 of Cr.P.C. to incorporate the observations made by the Apex Court in the said order and as a result, sub clause (5) was inserted in the said section. He submitted that by virtue of sub clause (5), the accused may be permitted to give answers to the questions raised under sec. 313 through his advocate subject to an undertaking being filed by the accused as per the guide lines laid down in paras 26 and 27 of the said judgment. He also invited my attention to the application filed by the accused in which he has specifically claimed the relief in the aforesaid terms. It is therefore submitted that it is clear non application of mind on the part of the learned Magistrate in exempting the respondent no.6 from recording his statement under sec. 313. The learned counsel appearing on behalf of the respondent no.6 has no objection if the procedure under sec. 313(5) is directed to be followed. 4. In my view after granting exemption to respondent no.2 from appearing in the court, the learned Magistrate ought to have directed the accused to follow the procedure as laid down under sec. 313 sub clause (5). The Apex Court in the case of Keya Mukherjee (supra) has observed as under: 3 “20. 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. 21. 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 clause (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 for it. But if the court fails to put the needed question unede4r 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. 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 he following matters: 4 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 section 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, of he does not wish to give any answer top 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 5 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 substitute for taking statement of accused.” 5. Pursuant to the said guidelines laid down by the Apex Court in the said judgment sub clause (5) was inserted in sec. 313 which was not noticed by the learned Magistrate before passing the order. It is no doubt true that the learned Magistrate ought to have directed the accused to file answers to the questions prepared by the court through his advocate after giving undertaking and more particularly as per the guidelines given in paras 26 and 27 of the said judgment in supra. The learned counsel appearing for respondent no.2 submits that the undertaking is already on file. The impugned order is therefore set aside and the learned Magistrate is directed to follow the procedure laid down in sub clause (5) of sec. 313 of Cr.P.C. (V. M. KANADE, J.)