- (1.) This revisional application under Section 482 of the Code of Criminal Procedure (hereinafter called the Code) has been filed by the petitioner assailing the order dated 18.7.05 passed by the Learned Chief Judicial Magistrate (in short CJM), South 24-Parganas at Alipore in complaint Case No. C-1663 of 2002 thereby rejecting the prayer of the accused petitioner for examination under Section 313 of the Code through his lawyer and directing personal appearance of the accused for the purpose of examination under Section 313 of the Code.
(2.) Learned Advocate for the petitioner submitted that the opposite party instituted the complaint case against this petitioner under Section 138 of the Negotiable Instruments Act. The accused was permitted to be represented under Section 205 of the Code. The said complaint case after crossing of the stage of examination'of witnesses in the trial has now reached the stage of examination of accused under Section 313 of the Code. During the stage of 313 examination of the accused, the Learned Magistrate has directed personal appearance of the accused petitioner in Court for the purpose of examination under Section 313 of the Code. The said order of the Learned Magistrate directing personal appearance of the accused petitioner in Court for his examination under Section 313 of the Code is bad in law. The accused was permitted to be represented under Section 205 of the Code and the accused at the stage of examination under Section 313 of the Code should also be permitted to be represented under Section 205 of the Code and the examination under Section 313 should be done by the Court through the lawyer representing the accused under Section 205 of the Code. He submitted that the Supreme Court in such a situation directed that when an accused was permitted to be represented under Section 205 of the Code, it is not necessary to appear before the trial Court for" recording statement as contemplated under Section 313 of the Code. In support of his contention he cited the decision in Shri Chandu Lal Chandraker v. Shri Puran Mal & Anr. reported in JT (1988)1 SC 14 : 1988 C Cr LR (SC) 267.
(3.) Learned Advocate for the opposite party submitted that the petitioner made an attempt for transfer of the case which was rejected even in the Supreme Court. Now the accused has filed the instant revisional application only to delay the conclusion of trial. Representation in the trial through a lawyer under Section 205 of the Code cannot be equated with representation of accused at the time of his examination under Section 313 of the Code through his lawyer. In examination under Section 313 of the Code the accused has to give answer to the questions to be put to him by the Court and a lawyer cannot be asked to give the answers to the questions of Court. The decision cited by the learned Advocate for the petitioner is per inquiring as a larger Bench of the Supreme Court in Bibhuti Bhusan Das Gupta v. State of West Bengal reported in AIR 1969 SC 381 observed that in examination under Section 342 of the Code, a pleader cannot represent the accused for the purpose of Section 342 of the Code. Before their Lordships in Shri Chandu Lal Chandraker v. Shri Puran Mal (supra) this larger Bench decision of three Judges was not referred to. The decision in Shri Chandu Lal Chandraker (supra) is of two Judges Bench and naturally the Court should give reliance on the decision of a larger Bench.;