ORIGINAL JURISDICTION - Orissa High Court

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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.