IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 21ST JANUARY 2011 / 1ST MAGHA 1932 Crl.MC.No. 4645 of 2010() ------------------------------------ MP.NO.8577/010 IN CC NO.372/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KUNNAMKULAM. ........... PETITIONER(S): ACCUSED IN C.C.NO.372/2006: ---------------------------------------------------------------------- SHIRAS, S/O. K.HAMSU, NOORJAHAN, SHENNAI ROAD,KALOOR, KOCHI-17. BY ADV. SRI.PRAVEEN K. JOY RESPONDENT(S): STATE & COMPLAINANT IN C.C.NO.372/2006: ----------------------------------------------------------------------------------------------- 1. STATE OF KERALA,REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SHRI.C.C.WILSON, THE MANAGING PARTNER, CHERUVATHOOR FINANCE, KOTTAYIL ROAD, KUNNAMKULAM, REP. BY HIS POWER OF ATTORNEY HOLDER, THE PRESENT MANAGER, M.C.CHACKOCHAN, S/O. CHAKKAPPAN, MANANTHAN HOUSE, PORKULAM. R1 BY PUBLIC PROSECUTOR SRI. K.J.MOHAMMED ANZAR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21/01/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- Crl.M.C.No.4645 of 2010 --------------------------------------- Dated this 21st day of January, 2011 ORDER In view of the order I propose to pass, notice to respondent No.2 is not necessary and is dispensed with. 2. Petitioner is accused in C.C.No.372 of 2006 of the court of learned Judicial First Class Magistrate, Kunnamkulam for offence punishable under Sec.138 of the Negotiable Instruments Act. He filed Annexure-A1, M.P.No.8577 of 2010 for his examination under Sec.313 of the Code of Criminal Procedure (for short, “the Code”) through his counsel. That application was dismissed by the learned Magistrate vide Annexure-A2, order dated October 13, 2010 observing that additional Sessions Judge, Thrissur (Fast Tract-2) while allowing Crl.Appeal No.331 of 2009 arising from the same case has directed examination of petitioner under Sec.313 of the Code and in view of the stand petitioner took in the said appeal, request for examination through counsel cannot be allowed. That order is under challenge. Learned counsel submitted that the discretion has not been properly exercised by the learned Magistrate in this regard. Crl.M.C.No.4645 of 2010 -: 2 :- 3. Petitioner is working at Bombay. It is not disputed that he was granted exemption from personal appearance. He was convicted and sentenced against which he filed Crl.Appeal No.331 of 2009. There, a contention was raised that he was not questioned under Sec.313 of the Code. Accepting that contention the case was remitted to the trial court directing the latter to “examine the accused under Sec.313 of the Code”. I am unable to say that the said observation forestalled an application by the petitioner for his examination under Sec.313(i)(b) of the Code through counsel if otherwise he is entitled to that course. It is not as if petitioner had contended in the appeal that examination through counsel was wrong. Instead, contention was that there was no examination under Sec.313 of the Code. 4. Learned counsel has invited my attention to the decision of the Supreme Court in Basavaraj R. Patil and Ors. Vs. State of Karnataka and Ors. (2000(8) SCC 740) where in page 743 it is stated about the formalities to be complied when examination of the accused under Sec.313 of the Code is to be done through counsel. Though, this court in Jain Babu Vs. Joseph (2008(4) KLT 16) issued certain general directions to be followed by all Magistrate’s in the matter, that decision has Crl.M.C.No.4645 of 2010 -: 3 :- been overruled by the Supreme Court in TGN Kumar Vs. State of Kerala and Ors. (2011(1) KHC 142) but, it is seen from the said decision that it is only the general direction issued in Jain Babu Vs. Joseph (supra) which has been overruled. It is pertinent to note that in TGN Kumar Vs. State of Kerala and Ors. (supra) the Supreme Court has made reference to the decision in Basavaraj R. Patil and Ors. Vs. State of Karnataka and Ors. (supra) and in fact quoted the relevant portion from page-743 as well. The Supreme Court in Basavaraj R. Patil and Ors. Vs. State of Karnataka and Ors. (supra) has pointed out that if the court is satisfied of genuineness of statements made by the accused in the application and affidavit (for examination under Sec.313(i)(b) through counsel) it is open to the court to supply the questionnaire to his advocate (containing the questions which the court might put to him under Sec.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 who shall affix his signature on all sheets of the answered questionnaire. Further direction to ensure truthfulness of the statement given by the accused is also given Crl.M.C.No.4645 of 2010 -: 4 :- by the Supreme Court in the said decision. The said direction and the decision in Basavaraj R. Patil and Ors. Vs. State of Karnataka and Ors. (supra) remains in force. 5. It is seen from the impugned order that learned Magistrate has not considered these aspects of the matter and under the impression that appellate court directed personal examination of petitioner/accused under Sec.313(i)(b) has disallowed the application. I am persuaded to think that the matter requires reconsideration. This criminal miscellaneous case is allowed, Annexure-A2, order dated October 13, 2010 on C.M.P.No.8577 of 2010 is set aside and that petition is remitted to the learned Magistrate (Judicial First Class Magistrate, Kunnamkulam) for fresh decision in the light of the decisions referred to above and considering the fact that petitioner is exempted from personal appearance as he is working at Bombay. (THOMAS P JOSEPH, JUDGE) Sbna/-