PARTHA SAKHA DATTA,J. - (1.) THESE two revisional applications dated 27.6.2007 are against the order dated 30.4.2007 passed by the learned Metropolitan Magistrate, 14th Court, Calcutta in T.R. No.468 of 2003 corresponding to Case No. C-4098 of 2003 under Section 138/141 of the N.I. Act rejecting the prayer of the petitioner-accused for being examined by his Counsel under Section 313 of the Cr.P.C. and directing him instead to be present in the Court on the date as was fixed by the learned Magistrate in the impugned order for examination under the said Section df the Law.
(2.) ACCORDING to Mr. Dastoor, learned Advocate appearing for the petitioner the learned Magistrate failed to appreciate that the proviso to sub-section (1) to Section 313 of the Cr. P.C. provides that in the summons case where the Court has dispensed with the personal attendance of the accused, it may also dispense with the examination of the accused under Section 313 of the Cr.P.C. The impugned order reveals that the prayer was made for examination of the accused through the pleader. Application was hotly contested by the complainant on the ground that the order allowing a petition under Section 205 of the Cr.P.C. was a conditional order in the sense that the petitioner was duty bound to appear before the Court as and when he would be directed. Learned Magistrate reasoned that examination of the accused under Section 313, Cr. P.C. cannot be equated with representation of the accused through Counsel under Section 205 of the Cr.P.C. Reference was made to two decisions i.e. A.I.R. 1969 S.C. 381 and (2006) Indian Criminal Law Reporter (Cal.) 348. Learned Magistrate observed that his view is that examination under Section 313, Cr. P.C. becomes essential after closure of evidence with the prosecution case as the Court is to put questions to the accused from the incriminating materials and circumstances that would transpire in evidence during trial and the accused is to give answer to the questions.
(3.) MR . A.K. Bhattacharya, learned Advocate appearing for the O.P. No.2 opposed the revisional application stating that the magisterial order was in order and no exemption cannot be taken thereto.;