ORIGINAL JURISDICTION - Orissa High Court

More documents

Recommendations

Info

168 Y.Mohanty, S.K.Mishra S.N.Das, B.B.Panda, S.K.Das. *CRIMINAL REVISION NO.112 OF 2008. From order dated 14.01.2008 passed by Sri A.Rath, Judicial Magistrate First Class, Bhubaneswar in I.C.C.No.2504 of 2005. S.K. MISHRA, J. Accused in I C.C. No. 2504 of 2005 assails the order passed by the learned J.M.F.C., Bhubaneswar on 14.01.2008. In that case, his petition for dispensing with recording of statement under Section 313 of the Criminal Procedure Code, 1973 (hereinafter referred to as “the Code”) has been rejected. The opposite party has initiated a complaint case against the present petitioner for the alleged offence under section 138 of the Negotiable Instruments Act, 1881. The accused was summoned. He filed application under Section 205 of the Code, which was allowed. The petitioner’s attendance was dispensed with and he was allowed to be represented through a counsel. Then, after closure of the prosecution evidence, the case was posted for accused statement. On 30.10.2007, learned counsel for the accused filed an application to dispense with the recording of accused statement under section 313 of the Code, by resorting to the proviso to sub-section (1). The learned J.M.F.C. rejected the petition on the ground that no document has been filed by the accused indicating that he is suffering from aggravated cardiac problem, for which he is receiving treatment outside the State. Considering the fact that the present case was lingering for more than four months for accused statement, the LINGARJA REAL ESTATES DEVELOPERS -V-STATE [S.K.MISHRA,J.] learned lower court rejected the petition. Such order is challenged in the revision. 2. Learned counsel for the petitioner in course of hearing of the revision application drew notice of the Court to Annexure-3 i.e. copy of the petition filed by the accused to dispense with the recording of accused statement. It is evident from the said petition that at that time, the accused was suffering from viral fever and also he was a patient of cardiac ailment. On 28.10.2007 all on a sudden, because of the aggravated cardiac problem, the accused had to go outside of the State for treatment and for that reason, the accused was not in a position to appear before the trial court. Hence, it was prayed that the recording of the statement of the accused be dispensed with. The accused has also pleaded that no prejudice will be caused to him, if such petition is allowed. Learned counsel for the petitioner however is not in a position to indicate, whether the petitioner is still receiving treatment outside the State or whether he is residing at present at Bhubaneswar. Learned counsel for the opposite party however objected to the prayer made by the petitioner.
169 3. It is undisputed at this stage that the petition of the accusedpetitioner was allowed under Section 205 of the Code, in which his attendance in court was dispensed with. The proviso to sub-section (1) of Section 313 of the Code lays down 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) of the said sub-section. The Supreme Court in Chandu Lal Chandraker v. Puran Mal and another, AIR 1988 S.C. 2163 had allowed the motion to dispense with the examination of the accused with the condition that he will not raise the question of prejudice, if any, caused to him on account of his nonexamination at subsequent stage of trial, in appeal or revision. 4. This question also came up for consideration before this Court in Pritish Nandy and another v. State of Orissa, 1989 Criminal Law Journal 2210, wherein this Court has held that examination of the accused under section 313 of the Code can be dispensed with when personal attendance of the accused is dispensed with under Section 205 of the Code, but in such a case, examination of representing counsel in lieu of the accused is not permissible. This Court held that the substantive provision of Section 313 of the Code has a mandatory requirement that the examination of the accused must be a personal one and cannot be delegated to a counsel representing him. Section 313 of the Code consists of two parts; one, an enabling power for the court that it may question, as it thinks necessary, the accused without previously warning him at any stage of the trial and the other, a compulsory direction to the court to question the accused generally on the case after the prosecution evidence is closed and before the accused is called upon to INDIAN LAW REPORTS, CUTTACK SERIES [2010] enter his defence. Proviso to sub-section (1) is an exception to the compulsory provision of clause (b) and applies only when the case is a summons case and the court has dispensed with the personal attendance of the accused. In a warrant case, the Court would have no power to dispense with the examination under Clause (b). It is further ruled by this Court in that case that it is not in all summons cases, where attendance of the accused has been dispensed with, his examination should also be dispensed with. In ultimate analysis, the statement made by the accused under Section 313 of the Code is grounded upon the principles of natural justice by furnishing the views of the accused to the court for its consideration by affording opportunity to him to explain the circumstances appearing against him. It is well settled that an inadequate examination or omission under Section 313 of the Code would not ipso facto render the trial void unless prejudice is shown to have been caused to the accused. The discretion to dispense with the examination of the accused under section 313 of the Code squarely lies on the Court and it is for the court to decide whether in given facts, such discretion should be exercised or not.
Page 1 and 2:
2010 ( I ) ILR-CUT- 271 I.M.QUDDUSI
Page 3 and 4:
SK.IBRAHIM -V- STATE OF ORISSA [B.K
Page 5 and 6:
2010 ( I ) ILR-CUT- 275 I.M.QUDDUSI
Page 7 and 8:
MIRJA SIDDIK -V- STATE OF ORISSA ju
Page 9 and 10:
23 DILIP KUMAR RAY -V- STATE OF ORI
Page 11 and 12:
Page 13 and 14:
Page 15 and 16:
2010 ( I ) ILR-CUT- 285 B.P.DAS,J &
Page 17 and 18:
NITYANANDA BEHERA -V- STATE [S.C.PA
Page 19 and 20:
2010 ( I ) ILR-CUT- 289 B.P.DAS,J &
Page 21 and 22:
ANUPAMA BEHERA -V- D.M., LIC OF IND
Page 23 and 24:
ANUPAMA BEHERA -V- D.M., LIC OF IND
Page 25 and 26:
39 13. In the case of P. J. Chacko
Page 27 and 28:
2010 ( I ) ILR-CUT- 297 L.MOHAPATRA
Page 29 and 30:
43 Court in the case of M/s. Thunga
Page 31 and 32:
45 and (c) on account of some mista
Page 33 and 34:
“ The High Court held that the re
Page 35 and 36:
49 Deputy Superintendent of Police.
Page 37 and 38:
The copy of the Station Diary dt.24
Page 39 and 40:
53 accordingly, investigation was t
Page 41 and 42:
55 lying dead with ligature mark on
Page 43 and 44:
11.40(1974) CLT.977 : (Sahadeb Patn
Page 45 and 46:
comparative statement showing perfo
Page 47 and 48:
61 construed according to the plain
Page 49 and 50:
63 11. This Court in Sahadeb Pattna
Page 51 and 52:
ules and regulations h) Ability to
Page 53 and 54:
INDIAN LAW REPORTS, CUTTACK SERIES
Page 55 and 56:
Page 57 and 58:
Page 59 and 60:
2010 ( I ) ILR-CUT- 328 A.S.NAIDU,J
Page 61 and 62:
Page 63 and 64:
2010 ( I ) ILR-CUT- 332 PRADIP MOHA
Page 65 and 66:
Page 67 and 68:
Page 69 and 70:
Page 71 and 72:
Page 73 and 74:
Page 75 and 76:
Page 77 and 78:
91 impression of bias and favourtis
Page 79 and 80:
2010 ( I ) ILR-CUT- 348 M.M.DAS,J.
Page 81 and 82:
95 hearing the appeal set aside the
Page 83 and 84:
97 and the parties to the lease are
Page 85 and 86:
2010 ( I ) ILR-CUT- 354 R.N.BISWAL,
Page 87 and 88:
101 cargo, which was unfit for ship
Page 89 and 90:
103 This Section stipulates that ap
Page 91 and 92:
105 Sub-section (2) of Section 7 of
Page 93 and 94:
107 further, in the meantime also t
Page 95 and 96:
109 “…… The High Court was of
Page 97 and 98:
111 learned Subordinate Judge on th
Page 99 and 100:
2010 ( I ) ILR-CUT- 368 SANJU PANDA
Page 101 and 102:
115 OLR 791 (Sk. Mustafa and anothe
Page 103 and 104: 2010 ( I ) ILR-CUT- 372 SANJU PANDA
Page 105 and 106: 119 Rs. 71,74,451/- for repair of t
Page 107 and 108: 121 reported in AIR 1989 SC 1239 (A
Page 109 and 110: 123 already quoted and the aforesai
Page 111 and 112: 125 offending truck. The further ca
Page 113 and 114: 2010 ( I ) ILR-CUT- 382 B.P.RAY,J.
Page 115 and 116: 129 to any person, or to consent th
Page 117 and 118: 2010 ( I ) ILR-CUT- 386 B.P.RAY, J.
Page 119 and 120: 133 testimony of the victim in a ca
Page 121 and 122: 135 relationship of the appellant w
Page 123 and 124: 137 Officer,Bangalore). 3.AIR 1996
Page 125 and 126: 139 restored, only to avoid the ord
Page 127 and 128: 2010 ( I ) ILR-CUT- 396 141 B.K.PAT
Page 129 and 130: 143 4.12.1997. The vehicle was insu
Page 131 and 132: 145 vehicle and insurance policy tr
Page 133 and 134: 147 place from the date of sale whe
Page 135 and 136: 149 deemed to have issued to the in
Page 137 and 138: 151 6. On an analysis of Sections 9
Page 139 and 140: 153 the policy purports to cover in
Page 141 and 142: 2010 ( I ) ILR-CUT- 410 B.K.NAYAK,
Page 143 and 144: 157 “….. The decision in the ca
Page 145 and 146: 2010 ( I ) ILR-CUT- 414 S.K.MISHRA,
Page 147 and 148: 161 the imposition of fine of Rs.50
Page 149 and 150: 163 overtuous regarding sex. Theref
Page 151 and 152: 165 6. The learned trial court, aft
Page 153: 167 The Opposite parties 2 to 11 ar
Page 157: shall dispose of the application on
show all

ORIGINAL JURISDICTION - Orissa High Court

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?