SMT. KEYA MUKHERJEEversusMAGMA LEASING LIMITED & ANR.

                            [2008] 6 S.C.R. 1


                       SMT. KEYA MUKHERJEE                            A
                                    v
                 MAGMA LEASING LIMITED & ANR.
-'               (Criminal Appeal No. 620 of 2008)
                            APRIL 8, 2008
                                                                      B
         [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

            Code of Criminal Procedure, 1973- s. 313 (1) b) Proviso
     - Examination of accused - Exemption from - Other than in
     summons cases·- Held: In cases other than summons cases,         c
     it is obligatory on the court to examine the accused under the
     provision when it is for the benefit of the accused - However, if
     its compliance causes great prejudice and disadvantage to
     the accused, the court in appropriate cases allow the accused
     to answer the question without making his physical presence
                                                                       0
     in the court on account of justifying the exceptional exigency
     - Procedure for making application for exemption and modus
     ofthe alternative examination u/s 313 described.
          In a proceeding u/s 138 of Negotiable Instruments
     Act, 1881, after completion of recording of evidence, the        E
     accused though granted exemption u/s 205 Cr.P.C. was
     denied exemption from examination u/s 313 (1) (b). The
     order denying the exemption was confirmed by the
     Revisional Court. Challenge against the same was
     rejected by High Court. Hence the present appeal.                F
          Dismissing the appeal, the Court
          HELD: 1.1 Prima facie the court has discretion to
     dispense with the physical presence of an accused during
     s.uch questioning only in summons cases and in all other G
     ca5es it is incumbent on the court to question the accused
     personally after closing prosecution evidence. All other
     offences generally belong to a different category
     altogether among which are included offences

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    2        SUPREME COURT REPORTS                [2008] 6 S.C.R.

                                                                    ~
A punishable with varying sentences from imprisonment for
    three years up to imprisonment for life and even right up
    to death penalty. [Paras 15 and 23] (9-E, F; 13-D]
         Usha K. Pillai v. Raj K. Srinivas 1993 (3) SCC 208-
    referred to
B
         1.2 The word "may" in clause (a) of sub-section (1)
    in Section 313 Cr.P.C. indicates, that even if the court does
    not put any question under that clause the accused
    cannot raise any grievance for it. But if the court fails to
c   put the needed question under clause (b) of the sub-
    section it would result in a han1icap to the accused and
    he can legitimately claim that no evidence, without
    affording him the opportunity to explain, can be used
    against him. [Para 21] (12-E, F]
D      1.3 Section 313 Cr.P.C. itself aeclares the object in
                                                                    ;..
  explicit language that it is "for the purpose of enabling
  the accused personally to explain any circumstances
  appearing in the evidence against him". Thus the
  provision is mainly intended to benefit the accused and
E as its corollary to benefit the court in reaching the final
  conclusion. At the same time it should be borne in mind
  that the provision is not intended to nail him to any
  position, but to comply with the most salutary principle
  of natural justice enshrined in the maxim audi alteram
  paitem.  [Paras 19, 20 and 21] [11-G; 12-A, C, D]
F                                                                   ..
       Jai Dev v. State of Punjab AIR1963 SC 612 - relied on.
        1.4 The word "shall" in clause (b) to Section 31.3(1)
  Cr.P.C. is to be interpreted as obligatory on the court and
  it should be complied with when i! is for the benefit of the
G
  accused. But if it works to his great prejudice and
  disadvantage the court should, in appropriate cases, e.g.,
  if the accused satisfies the court that he is unable to reach
  the venue of the court, except by bearing huge
  expenditure or that he is unable to travel the long journey
H
         SMT. KEYA MUKHERJEE v. MAGMA LEASING LIMITED             3
                           &ANR..

 i       due to physical incapacity or some such other hardship, A
         relieve him of such hardship and at the same time adopt
         a measure to comply with the requirements in Section 313
         Cr.P.C. in a substantial manner. [Para 25] [14-B, C, D]
              1.5 If the accused (who is already exempted from
         personally appearing in the court) makes an application B
·\'      to the court praying that he may be allowed to answer the
         questions without making his physical presence in court
         on account of justifying exigency the court can pass
         appropriate orders thereon, provided such application is
         accompanied by an affidavit swo.~n to by the accused c
         himself containing the matters (a) A narration of facts to
         satisfy the court of his real difficulties to be physically
         present in court for giving such answers.(b) An assurance
         that no prejudice would be caused to him, in any manner,
         by dispensing with his personal presence during such D
--'<;
         questioning.(c) An undertaking that he would not raise
         any grievance on that score at any stage of the case.
         [Para 26] [14-D, E, F, G]
              1.6 If the court is satisfied of the genuineness of the
         statements made by the accused in the said application E
         and affidavit, it is open to the court to supply the
         questionnaire to his advocate (containing the questions ·
         which the court might put to him under Section 313 Cr.P.C.)
         and fix the time within which the same has to be returned
         duly answered by the accused together with a properly F
     t   authenticated affidavit that those answers were given by
         the accused himself. He should affix his signature on all
         the sheets of the answered questionnaire. However, if he
         does not wish to give any answer to any of the questions
         he is free to indicate that fact at the appropriate place in G
         the questionnaire (as a matter of precaution the court may
         keep photocopy or carbon copy of the questionnaire
         before it is supplied to the· accused for an· answer). If the
         accused fails to return the questionnaire duly answered
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    4          SUPREME COURT REPORTS                  [2008] 6 S C.R.


A within the time or extended time granted by the court, he
  shall forfeit his right to seek personal exemption from
  court during such questioning. The Court has also to
  ensure that the imaginative response of the counsel is
  intended to be availed to be a substitute for taking
B statement of accused. If the above course is adopted
  in exceptional exigency it would not violate the
  legislative intent envisaged in Section 313 Cr.P.C ..
  [Paras 27 and 28] [14-H; 15-A-E]
      Bibhuti Bhusan Das Gupta and Anr v. State of West
C Bengal Al R 1969 SC 381 ; Basav Raj R Patil v. State of
  Kamataka 2000 (8) SCC 740 - relied on.

        Chandu Lal Chandraker v. Puran Mal and Anr AIR 1988
    SC 2163 - held per in curium.
D       f-late Singh Bhagat Singh v. State of Madhya Bharat AIR
    1953 SC 468; Shivaji Sahabrao Bobade v. State of
    Maharashtra 1973 (2) SCC 793 - referred to.

         The Law Commission, 41st Report - referred to.

E       CRIMINAL APPELLATE JURISDICTION : Criminal
    Appeal No. 620 of 2008.
         From the final Judgment and Order dated 13/3/2007 of
    the High Court of Calcutta at Calcutta in C.R.R. No. 4264/2006

F        Rauf Rahim for the Appellant.
         Manoj and Abhijit P. Medh for the Respondents.
         The Judgment of the Court was delivered by
         DR. ARIJIT PASAYAT, J. 1. Leave granted.
G
          2. Challenge in this appeal is to the order passed by a
    learned Single Judge of the Calcutta High Court dismissing the
    application filed by the appellant under Section 401 read with      ~

    Section 482 of the Code of Criminal Procedure, 1973 (in short
    the 'Cr.P.C'). Challenge in the said application was to the order
H
     SMT KEYA MUKHERJEE v. MAGMA LEASING LIMITED                      5
 I
             & ANR. [DR. ARIJIT PASAYAT, J.]
't
     dated 26.9.2006 passed by learned Additional Sessions Judge, A
     7th Fast Track Court, Calcutta in Criminal Revision No. 36 of
     2006 by which the order dated 2.2.2006 passed by learned
     Metropolitan Magistrate 11th Court, Calcutta in Case No. C-510
     of 2003 was upheld. Learned Magistrate has rejected the
     appellant's prayer for dispensing with her examination under B
     Section 313 Cr.P.C. by examining of the pleader who was to
     represent her under Section 205 Cr.P.C. The proceeding was
     one under Section 138 of the Negotiable Instruments Act, 1881
     (in short the 'N I Act'). Appellant appeared before learned
     Magistrate on 2.6.2003 and was released on bail. On 31.1.2004         c
     she was examined under Section 251 Cr.P.C. Since she was
     absent on 3. 7 .2004, warrant of arrest was issued against her
     but on 20.7.2004 she surrendered before learned Magistrate
     and was released on bail. Recording of evidence was
     completed and 5th May, 2005 was fixed for her examination
                                                                     D
     under Section 313 Cr.P.C. But on that date she was absent and
     a prayer was made for adjournment. The date was adjourned
     to 12.5.2005. On that date appellant filed a petition purported
     to be under Section 313 (1)(b) of Cr.P.C. Another petition was
     filed on 23.8.2005 under Section 205 Cr.P.C. Learned
     Magistrate allowed the petition filed under Section 205 Cr.P.C. E
     on 2.2.2006 subject to the condition that the appellant shall
     appear before the Court as and when called. But the petition
     under Section 313(1)(b) Cr.P.C. was rejected.

          3. Learned Magistrate fixed 6.3.2006 for examination of          F
     the accused under Section 313 Cr.P.C. and directed the
     appellant to be personally present on that date. It is against this
     order of learned Magistrate a revision was filed before learned
     Additional Sessions Judge who confirmed the order. The order
     was challenged before the High Court, which as noted above
                                                                           G
     the same was rejected.
           4. Learned counsel for the appellant submitted that in view
     of this Court's order in Chandu Lal Chandraker v. Puran Mal &
     Anr. (AIR 1988 SC 2163) the prayer should have been accepted.
     It was pointed out that whether in summons procedure case the         H
    6         SUPREME COURT REPORTS                   [2008] 6 S.C.R.


A accused should be exempted from personal examination under
  Section 313 (1)(b), the Court has exercised judicial discretion.
  The word 'may' occurring in the provjso clearly indicates that
  learned Magistrate may or may not keeping the exigency of the
  circumstances allow the prayer of the appellant for exemption
B from personal examination under Section 313 Cr.P.C. According
  to him on the factual position when the appellant was permitted
  to be represented in terms of Section 205 Cr.P.C .. the courts
  below had erroneously rejected the prayer.
         5. It is pointed out that question as to at what stage of the
C trial the personal appearance of the accused was dispensed
  with under Section 205 Cr.P.C. is not material because the fact
  is that on the prayer of the appellant the petition under Section
  205 was allowed before the exemption of the accused under
  Section 313 Cr.P.C. Merely because the prayer was allowed
D only almost on the conclusion of the trial cannot be a ground to
  reject a petition filed under the proviso to Section 313 (1)(b)
  Cr.P.C.
        6. Learned counsel for the respondent No.1 supported the
    impugned order of the High Court.
E
         7. A few decisions of this Court need to be noticed in this
    context.
       8. In Bibhuti Bhusan Das Gupta & Anr. v. State of West
  Bengal (AIR 1969 SC 381), this Court held that the pleader
F cannot represent the accused for the purpose of Section 342 of         ~-
  the Code of Criminal Procedure, 1898 (hereinafter referred to
  as 'Old Code') which is presently Section 313 Cr.P.C.
         9. Section 313 Cr.P.C. reads as follows:
G        "313. Power to examine the accused.-(1) In every inquiry
         or trial, for the purpose of enabling the accused personally
         to explain any circumstances appearing in the evidence
         against him, the court-
         (a) may at any stage, without previously warning the
H
SMT. KEYA MUKHERJEE v. MAGMA LEASING LIMITED                      7
         & ANR. [DR. ARIJIT PASAYAT, J.]

     accused, put such questions to him as the court considers A
     necessary;
     (b) shall, after the witnesses for the prosecution have been
     examined and before he is called on for his defence, .
     question him generally on the case:
                                                                       B
     Provided 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).
     (2) No oath shall be administered to the accused when he C
     is examined under sub-section (1 ).
     (3) The accused shall not render himself liable to
     punishment by refusing to answer such questions, or by
     giving false answers to them.
                                                                       D
     (4) The answers given by the accused may be taken into
     consideration in such inquiry or trial, and put in evidence
     for or against him in any other inquiry into, or trial for, any
     other offence which such answers may tend to show he
     has committed."                                                   E
    10. The forerunner of the said provision in the Old Code
was Section 342 therein. It was worded thus:
     "342. (1) For the purpose of enabling the accused to
     explain any circumstances appearing in the evidence F
     against him, the court may, at any stage of any inquiry or
     trial, without previously warning the accused, put such
     questions to him as the court considers necessary, and
     shall, forthe purpose aforesaid, question him generally on
     the case after the witnesses for the prosecution have been G
     examined and before he is called on for his defence.
     (2) The accused shall not render himself liable to
     punishment by refusing to answer such questions, or by
     giving false answers to them; but the court and the jury (if
     any) may draw such inference from such refusal or answers H·
    8         SUPREME COURT REPORTS                    [2008] 6 S.C.R


A        as it thinks just.

         (3) The answers given by the accused may be taken into
         consideration in such inquiry or trial, and put in evidence
         for or against him in any other inquiry into, or trial for, any
         other offence which such answers may tend to show he
B        has committed.

         (4) No oath shall be administered to the accused when he
         is examined under sub-section (1 )."

         11. Dealing with the position as the section remained in
C   the original form under the Old Code, a three-Judge Bench of
    this Court in Hate Singh Bhagat Singh v. State of Madhya
    Bharat (AIR 1953 SC 468) that:

         "The statements of the accused recorded by the
         Committing Magistrate and the Sessions Judge are
D
         intended in India to take the place of what in England and
         in America he would be free to state in his own way in the
         witness-box. They have to be received in evidence and
         treated as evidence and be duly considered at the trial."

E        12. Parliament, thereafter, introduced Section 342-A in the
    Old Code (which corresponds to Section 315 of the present
    Code) by which permission is given to an accused to offer
    himself to be examined as a witness if he so chose.

         13. In Bibhuti Bhusan Das Gupta's case (supra) another
F   three-Judge Bench dealing with the combined operation of
    Sections 342 and 342-A of the Old Code made the following
    observations:
         "Under Section 342-A only the accused can give evidence
G        in person and his pleader's evidence cannot be treated
         as his. The answers of the accused under Section 342 is
         intended to be a substitute for the evidence which he can
         give as a witness under Section 342-A. The privilege and
         the duty of answering questions under Section 342 cannot
         be delegated to a pleader. No doubt the form of the
H
        SMT KEYA MUKHERJEE v. MAGMA LEASING LIMITED                      9
                & ANR [DR ARIJIT PASAYAT, J.]
~            summons show that the pleader may answer the charges             A
             against the accused, but in so answering the charges, he
             cannot do what only the accused can do personally. The
             pleader may be permitted to represent the accused while
             the prosecution evidence is being taken. But at the close
             of the prosecution evidence the accused must be                  B
             questioned and his pleader cannot be examined in his
             place."

               14. The Law Commission in its 41st Report considered
        the aforesaid decisions and also various other points of view
        highlighted by legal men and then made the report after reaching      c
        the conclusion that:

             (1) in summons cases where the personal attendance of
             the accused has been dispensed with, either under Section
             205 or under Section 540-A, the court should have a power
                                                                              D
             to dispense with his examination; and
""=',
             (it) in other cases, even where his personal attendance
             has been dispensed with, the accused should be examined
             personally.
              15. The said recommendation has been followed up by             E
        Parliament and Section 313 of the Code, as is presently worded,
        is the result of it. It would appear prima facie that the court has
        discretion to dispense with the physical presence of an accused
        during such questioning only in summons cases and in all other
        cases it is incumbent on the court to question the accused            F
 -{
        personally after closing prosecution evidence. Nonetheless, the
        Law Commission was conscious that the rule may have to be
        relaxed eventually, particularly when there is improvement in
        literacy and legal-aid facilities in the country. This thinking can
        be discerned from the following suggestion made by the Law            G
        Commission in the same report:

  •          "We have, after considering the various aspects of the
             matter as summarised above, come to the conclusion
             that Section 342 should not be deleted. In our opinion, the
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    10        SUPREME COURT REPORTS                   [2008] 6 S.C.R.

                                                                          ~
A        stage has not yet come for it being removed from the
         statute-book. With further increase in literacy and with
         better facilities for legal aid, it may be possible to take
         that step in the future."
        16. The position has to be considered in the present set-
B up, particularly after the lapse of more than a quarter of a century
                                                                          ~
  through which period revolutionary changes in the technology
  of communication and transmission have taken place, thanks
  to the advent of computerisation. There is marked improvement
  in the facilities for legal aid in the country during the preceding
c twenty-five years. Hence a fresh look can be made now. We
  are mindful of the fact that a two-Judge Bench in Usha K. Pillai
  (1993 (3) sec 208) has found that the examination of an accused
  personally can be dispensed with only in summons case. Their
  Lordships were considering a case where the offence involved
D was  Section 363 IPC. The two-Judge Bench held thus: (SCC
  pp. 212-13, para 4)                                                     ,..
         "A warrant case is defined as one relating to an offence
         punishable with death, imprisonment for life or
         imprisonment for a term exceeding two years. Since an
E        offence under Section 363 IPC is punishable with
         imprisonment for a term exceeding two years it is a warrant
         case and not a summons case. Therefore, even in cases
         where the court has dispensed with the personal
         attendance of the accused under Section 205(1) or Section
F        317 of the. Code, the court cannot dispense with the
         examination of the accused under clause (b) of Section          \-
         313 of the Code because such examination is mandatory."
        17. Contextually we cannot bypass the decision of a three-
  Judge Bench of this Court in Shivaji Sahabrao Bobade v. State
G of Maharashtra (1973 (2) SCC 793) as the Bench has widened
  the sweep of the provision concerning examination of the
  accused after closing prosecution evidence. Learned Judges             4i
  in that case were considering the fallout of omission to put to
  the accused a question on a vital circumstance appearing
H against him in the prosecution evidence. The three-Judge Bench
        SMT. KEYA MUKHERJEE v. MAGMA LEASING LIMITED                  11
                 & ANR. [DR. ARIJIT PASAYAT, J.)
   1
        made the following observations therein: (SCC p. 806, para A
        16)
             "It is trite law, nevertheless fundamental, that the prisoner's
             attention should be drawn to every inculpatory material so
             as to enable him to explain it. This is the basic fairness of
  -<,        a criminal trial and failures in this area may gravely imperil B
             the validity of the trial itself, if consequential miscarriage
             of justice has flowed. However, where such an omission
             has occurred it does not ipso facto vitiate the proceedings
             and prejudice occasioned by such defect must be
             established by the accused. In the event of evidentiary       c
             material not being put to the accused, the court must
             ordinarily eschew such material from consideration. It is
             also open to the appellate court to call upon the counsel
             for the accused to show what explanation the accused
             has as regards the circumstances established against D
             him but not put to him and if the accused is unable to offer
             the appellate court any plausible or reasonable explanation
             of such circumstances, the court may assume that no
             acceptable answer exists and that even if the accus.ed
             had been questioned at the proper time in the trial court E
             he would not have been able to furnish any good ground
             to get out of the circumstances on which the trial court had·
             relied for its conviction."
               18. The above approach shows that some dilution of the
  -{    rigour of the provision can be made even in the light of a F
        contention raised by the accused that non-questioning him on a
        vital circumstance by the trial court has caused prejudice to him.
        The explanation offered by the counsel of the accused at the
        appellate stage was held to be a sufficient substitute for the
        answers given by the accused himself.                            -- G

,, ~         19. What is the object of examination of an accused under
        Section 313 of the Code? The section itself declares the object
        in explicit language that it is "for the purpose of enabling the
        accused personally to explain any circumstances appearing in
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    12        SUPREME COURT REPORTS                    [2003] 6 S C.R.


A   the evidence against him". In Jai Dev v. State of Punjab
    (AIR1963 SC 612) Gajendragadkar, J. (as he then was)
    speaking for a three-Judge Bench has focussed on the ultimate
    test in determining whether the provision has been fairly
    complied with. He observed thus:
B        "The ultimate test in determining whether or not the accused
         has been fairly examined under Section 342 would be to
         inquire whether, having regard to all the questions put to
         him, he did get an opportunity to say what he wanted to
         say in respect of prosecution case against him. If it appears
c        that the examination of the accused person was defective
         and thereby a prejudice has been caused to him, that
         would no doubt be a serious infirmity."

       20. Thus it is well settled that the provision is mainly
  intended to benefit the accused and as its corollary to benefit
D
  the court in reaching the final conclusion.

          21. At the same time it should be borne in mind that the
    provision is not intended to nail him to any position, but to comply
    with the most salutary principle of natural justice enshrined in
E   the maxim audi a!teram partem. The word "may" in clause (a)
    of sub-·section (1) in Section 313 of the Code indicates, without
    any doubt, that even ifthe court does not put any question und~r
    that clause the accused cannot raise any grievance for it. But if
    the court fails to put the needed question under clause (b) of the
F   sub-section it would result in a handicap to the accused and he
                                                                           ~
    can legitimately claim that no evidence, without affording him
    the opportunity to explain, can be used against him. It is now
    well settled that a circumstance about which the accused was
    not asked to explain cannot be used against him.
G       22. But the situation to be considered now is whether, with
  the revolutionary change in technology of communication and
  transmission and the marked improvement in facilities for legal          ~   '
  aid in the country, is it necessary that in all cases the accused
  must answer by personally remaining present in court. We clarify
H that this is the requirement and would be the general rule.
        SMT KEYA MUKHERJEE v. MAGMA LEASING LIMITED                       13
                & ANR [DR ARIJIT PASAYAT, J]

        However, if remaining present involves undue hardship and large         A
        expense, could the court not alleviate the difficulties. If the court
        holds the view that the situation in which he made such a plea is
        genuine, should the court say that he has no escape but he must
        undergo all the tribulations and hardships and answer such
        questions personally presenting himself in court. If there are other    B
.-l.    accused in the same case, and the court has already completed
        their questioning, should they too wait for long without their case
        reaching finality, or without registering further progress of their
        trial until their co-accused is able to attend the court personally
        and answer the court questions? Why should a criminal court             c
        be rendered helpless in such a situation?

                23. The one category of offences which is specifically
        exempted from the rigour of Section 313(1)(b) of the Code is
        "summons cases". It must be remembered that every case in
        which the offence triable is punishable with imprisonment for a D
:..,    term not exceeding two years is a "summons case". Thus, all
        other offences generally belong to a different category altogether
        among which are included offences punishable with varying
        sentences from imprisonment for three years up to imprisonment
        for life and even right up to death penalty. Hence there are several E
        offences in that category which are far less serious in gravity
        compared with grave and very grave offences. Even in cases.
        involving less serious offences, can not the court extend a
        helping hand to an accused who is placed in a predicament
        deserving such a help?                                               F
  ·1'
              24. Section 243(1) of the Code enables the accused, who
        is involved in the trial of warrant case instituted on police report,
        to put in any written statement. When any such statement is filed
        the court is obliged to make it part of the record of the case.
        Even if such case is not instituted on police report the accused        G
        has the same right (vide Section 247). Even the accused

  •     involved in offences exclusively triable by the Court of Session
        can also exercise such a right to put in written statements
        (Section 233(2) of the Code). It is common knowledge that most
        of such written statements, if not all, are prepared by the counsel     H
    14       SUPREME COURT REPORTS                    [2008] 6 S.C.R.


A   of the accused. If such written statements can be treated as
    statements directly emanating from the accused, hook, line and
    sinker, why not the answers given by him in the manner set out
    hereinafter, in special contingencies, be afforded the same
    worth.
B        25. We think that a pragmatic and humanistic approach is
  warranted in regard to such special exigencies. The word "shall"
  in clause (b) to Section 313( 1) of the Code is to be interpreted
  as obligatory on the court and it should be complied with when
  it is for the benefit of the accused. But if it works to his great
C prejudice and disadvantage the court should, in appropriate
  cases, e.g., if the accused satisfies the court that he is unable
  to reach the venue of the court, except by bearing huge
  expenditure or that he is unable to travel the long journey due to
  physical incapacity or some such other hardship, relieve him of
D such hardship and at the same time adopt a measure to comply
  with the requirements in Section 313 of the Code in a substantial
  manner. How could this be achieved?
          26. If the accused (who is already exempted from personally
    appearing in the court) makes an application to the court praying
E   that he may be allowed to answer the questions without making
    his physical presence in court on account of justifying exigency
    the court can pass appropriate orders thereon, provided such.
    application is accompanied by an affidavit sworn to by the
    accused himself containing the following matters:
F
         (a) A narration of facts to satisfy the court of his real        t-
         difficulties to be physically present in court for giving such
         answers.
         (b) An assurance that no prejudice would be caused to
G        him, in any manner, by dispensing with his personal
         presence during such questioning.
         (c) An undertaking that he would not raise any grievance
         on. that score at any stage of the case.
H        27. If the court is satisfied of the genuineness of the
 SMT. KEYA MUKHERJEE v. MAGMALEASING LIMITED                    15
          & ANR. [DR. ARIJIT PASAYAT, J.]

  statements made by the accused in the said application and A
  affidavit it is open to the court to supply the questionnaire to his
  advocate (containing the questions which the court might put to
  him under Section 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 B
  were given by the accused himself. He should affix his signature
  on all the sheets of the answered questionnaire. However, if he
  does not wish to give any answer to any of the questions he is
  free to indicate that fact at the appropriate place in the
  questionnaire (as a matter of precaution the court may keep c
  photocopy or carbon copy of the questionnaire before it is
 ·supplied to the accused for an answer). If the accused fails to
  return the questionnaire duly answered as aforesaid within the
  time or extended time granted by the court, he shall forfeit his
  right to seek personal exemption from court during such D
  questioning. The Court has also to ensure that the imaginative
  response of the counsel is intended to be availed to be a
. substitute for taking statement of accused.
      28. In our opinion, if th.e above course is adopted in
exceptional exigency it would not violate the legislative intent     E
envisaged in Section 313 of the Code.
      29. The above position was indicated in Basav Raj R Patil
v. State of Kamataka (2000 (8) SCC 740).
      30. It is true that in Chandu Lal Chandraker's case (supra)    F
two Hon'ble Judges have taken a view supporting that of the
appellant. It appears that in said case no reference was made
to Bibhuti Bhusan Das Gupta's case (supra).
     31. Judged in the background of principles set out in Basav
Raj R. Pati/'s case (supra) the inevitable conclusion is that the G
High Court's impugned order does not suffer from any infirmity
to warrant interference.
      32. Appeal is dismissed.
K.K.T.                                       Appeal dismissed.       H