Holding

The High Court exceeded its jurisdiction; the discretion to dispense with personal attendance under Section 205 rests exclusively with the magistrate and cannot be constrained by general directions, rendering the High Court’s order invalid.

Summary

The case arose from a complaint under Section 138 of the Negotiable Instruments Act. The accused obtained a High Court order under Section 482 CrPC allowing her to appear through counsel and the High Court issued sweeping directions to all criminal courts to dispense with personal attendance of accused in such cases and to accept written statements under Section 313. The complainant appealed, challenging the validity of those directions. The Supreme Court held that the discretion to dispense with personal attendance under Section 205 lies solely with the trial magistrate and cannot be fettered by general directions, and that the High Court’s exercise of its inherent powers under Section 482 and its supervisory jurisdiction under Article 227 must be sparing and cannot be used to prescribe procedural rules for subordinate courts. Consequently, the High Court’s order was set aside. The appeal was allowed.

Issues considered

Can a High Court, exercising powers under Sections 482, 483 of the CrPC and Article 227 of the Constitution, issue general directions to all criminal courts to invoke discretion under Section 205 and mandate issuance of summons in cases under Section 138 of the Negotiable Instruments Act?
Does the High Court have authority to direct that magistrates accept written statements of accused under Section 313 CrPC?
What is the scope and limitation of the discretion conferred on a magistrate by Section 205 CrPC?
To what extent may the inherent powers under Section 482 CrPC and the supervisory jurisdiction under Article 227 be used to lay down procedural guidelines for subordinate courts?

Legislation cited

Code of Criminal Procedure, 1973s. 205, s. 313, s. 482, s. 483
Constitution of Indias. Article 227
Negotiable Instruments Act, 1881s. 138

Subjects

Criminal ProcedureSection 205Section 313Section 482Article 227Negotiable Instruments Actpersonal attendancediscretionary powerinherent jurisdictiongeneral directions

Judgment

i - • ;. ..

[2011} 1 S .C.R. 436

A TGN KUMAR
v.
STATE OF KERALA AND ORS.
(Criminal Appeal No. 1854 of 2008)
JANUARY 14, 2011
B
[D.K. JAIN, ASOK KUMAR GANGULY AND
H.L. DATTU, JJ.]

CODE OF CRIMINAL PROCEDURE, 1973:
c
Sections 205, 313, 482 and 483 rlw Article 227 of the
Constitution - Powers of High Court - Complaint for offence
punishable u/s 138 of NI Act - Petition u/s 482 by accused
before High Court praying for dispensing with personal
0 presence before Magistrate - General directions by High
Court to all criminal courts as regards cases ipvolving
offences technical in nature and not involving moral·turpitude,
to invoke the discretion u/s 205 CrPC and a further cJirecJiorr
that only a summons shall be issued at the first instance -
E HELD: The satisfaction whether or not an accused deserves
to be exempted from personal attendance has to be of the
Magistrate and none else and this discretion cannot be
circumscribed by any general directions - Similarly, the
direction to accept and consider written statement of the
accused is not in accord with the language of s.313 CrPC nor
F with the dictum laid down by Supreme Court - Inherent powers
· of High Court u/s 482 and power of superintendence under
Article 227 of the Constitution have to be exercised sparingly
and only in appropriate cases - In the instant case, High Court
exceeded its jurisdiction u/s 482 CrPC and/or Article 227 of
G the Constitution in laying down the general directions which
are inconsistent with the clear language of ss. 205 and 313
CrPC - Impugned order containing general directions set
aside - Constitution of India, 1950 - Article 227 - Judicial
propriety - Administration of Criminal Justice.
H- _ · . _ _ 436
..
TGN KUMAR v. STATE OF KERALA AND ORS. 437

JUDICIAL PROPRIETY: A
~ High court issuing general directions as regards
dispensing with personal presence of accused u/s 205 and
to accept written statement of the accused u/s 313 CrPC -
Held: In light of guidelines laid down by Supreme Cowt, further B
directions on same issue laid down by· High Court are
uncalled for- Code of Criminal Procedure, 1973 - ss. 205,
313 and 482 - Constitution of India, 1950 - Article 227.
?.
The appellant filed a complaint uls 138 of the
Negotiable Instruments Act, 1881 (N.I. Act). The accused, c
on being summoned by the Magistrate, filed a petition
before the High Court uls 482 CrPC, inter alia, praying for
dispensing with her personal appearance before the
Magistrate. The Single Judge of the High Court, while
allowing the petition and permitting the accused to D
I); appear before the trial court through her counsel, issued
general directions to all the criminal courts as regards
"holding of trials, particularly, in cases involving offences
u/s 138 of the N.I. Act as also in all other cases involving
offences technical in nature and not involving moral E
turpitude.

The appeal filed by the complainant was listed before
~ a Division Bench of the Supreme Court which felt the
necessity of referring the matter to a larger Bench and,
thus, the appeal was referred to the three-Judge Bench
F
to consider the question: whether the High Court in
exercise of its jurisdiction u/ss 482 and 483 of the Code
of Criminal Procedure, 1973 and/or under Article 227 of
the Constitution of India could issue guidelines directing
all courts taking: cognizance of offences u/s 138 of the N G
,#-
I Act, inter alia, to invoke the discretion u/s 205 of the
Code and only with a further direction that summons u/s
205 shall be issued at the first instance.

H
438 SUPREME COURT REPORTS [2011] 1 S.C.R.

A Answering the question in the negative and allowing
the appeal, the Court ,,.._:

HELD:

1.1 Section 205 of the Code of Criminal Procedure,
8 1973 confers a discretion on the court to exempt an
accused from personal appearance till such time his
appearance is considered by the court to be not
necessary during the trial. It is manifest from a plain .'I'

reading of the provision that while considering an
c application u/s 205 of the Code, the Magistrate has to
bear in mind the nature of the case as also the conduct
of the person summoned. He shall examine whether any
useful purpose would be served by requiring the personal
attendance of the accused or whether the progress of the
D trial is likely to be hampered on account of his absence.
Therefore, the satisfaction whether or not an accused ;i('

deserves to be exempted from personal attendance has
to be of the Magistrate, who is the master of the court in
so far as the progress of the trial is concerned and none
E else. [paras 6 and 7) [446-C-H; 447-A]
S. V. Muzumdar & Ors. Vs. Gujarat State Fertilizer Co. Ltd.
=
& Anr. 2005 (3) SCR 857 (2005) 4 SCC 173- relied on.

1.2 The guidelines, laid down by this Court in
F Bhaskar Industries Ltd.*, are concurred with and while re-
affirming the same, this Court would add that the order
of the Magistrate should be such which does not result
in unnecessary harassment to the accused and at the
same time does not cause any prejudice to the
G complainant. The Court must ensure that the exemption """-
from personal appearance granted to an accused is not
abused to delay the trial. In view of the legal principles
enunciated by-this Court, the impugned order is clearly
erroneous in as much as the discretion of the Magistrate
H •
TGN KUMAR v. STATE OF KERALA AND ORS. 439

u/s 205 of the Code cannot be circumscribed by laying A
~ down any general directions in that behalf. [paras 8 and
9]. [447-F-H; 448-A]

*Bhaskar Industries Ltd. Vs. Bhiwani Denim & Apparels
Ltd. & Ors. 2001 (2) Suppl. SCR 219 = (2001) 7 sec 401- B
reaffirmed.

Manoj Narain Agrawal Vs. Shashi Agrawal & Ors. 2009
(5) SCR 976 = (2009) 6 SCC 385-relied on.
""
Saseendran Nair Vs. General Manager 1996 (2) KLT c
482, K.S.R. T.C. Vs. Abdul Latheef Kera/a 2005 (3) KLT 955;
Raman Nair Vs. State of Kera/a 1999 (3) KLT 714; Noorjahan
Vs. Moideen 2000 (2) KLT 756; and Helen Rubber Industries
& Ors. Vs. State of Kera/a & Ors. 1972 K.L.T. 794 - cited

>~ 1.3 It is equally "trite that the inherent powers of the D
High Court u/s 482 of the Code have to be exercised
sparingly with circumspection, and in rare cases to
correct patent illegalities or to prevent miscarriage of
justice. [para 10] [448-D]
E
Madhu Limaye Vs. The State of Maharashtra 1978 (1)
SCR 749 = \1977) 4 sec 551-relied on.
~
1.4. Similarly, while it is true that the power of
superintendence conferred on the High Court under
F
Article '27 of the Constitution of India is both
administrative and judicial, but such power is to be
exercised sparingly and only in appropriate cases in order
to keep the subordinate courts within the bounds of their
authority. In any event, the power of superintendence
~
cannot be exercised to influence the subordinate G
judiciary to pass any order or judgment ii:i a particular
manner. [para 11] [448-G-H; 449-A-B]

Jasbir Singh Vs. State of Punjab 2006 (7) Suppl.
SCR 174 = (2006) 8 sec 294-relied on. H
440 SUPREME COURT REPORTS [2011) 1 S.C.R.

A 1.5 As regards direction (iv) in the order of the Single
Judge of the High Court to accept and consider the
written statement made by the accused, it is again not in
accord with the language of s. 313 of the Code nor with
the dictum laid down by this Court in Basavaraj R. Patil's
B case*. On the plain language of s. 313, it is evident that
in a summons case, when the personal appearance of
the accused has been dispensed with u/s 205 of the
Code, a discretion is vested in the Magistrate to dispense
with the rigour of personal examination of the accused
C u/s 313 of the Code as well. It is manifest from the
judgment in Basavraj R. Pati/'s case that dispensation with
the personal examination of an accused in terms of the
provision of s. 313(1 )(h) is with in the trial court's
discretion, to be exercised keeping in view certain
parameters, enumerated therein and not as a m'atter of
0
course. [paras 12, 13 and 15] [449-G; 450-F; 451-G]
*Basavaraj R. Pati/'s case & Ors. Vs. State of Kamataka
=
& Ors. 2000 (3) Suppl. SCR 658 (2000) 8 SCC 740-relied
on.
E
1.6 It is true that in direction (vii) in the impugned
judgment, the Single Judge has clarified that the
stipulations in the preceding paragraphs are not intended
to fetter the discretion of the court to follow any different
F procedure, if there be compelling need but the
requirement of recording 'specific reasons' by the
Magistrate for deviating from the directions given in the
order, as stipulated in the same paragraph is by itself
tantamount to putting fetters on the jurisdiction of the
G Magistr~te. This is not warranted in law. [para 16] [451-
H; 452-A-B]
1.7 Thus, in the instant case, the High Court
exceeded its jurisd.iction u/s 482 of the Code and/or
Article 227 of the Co~stitution by laying down the general
H directions, which are' inconsistent with the clear language
TGN KUMAR v. STATE OF KERALA AND ORS. 441

of ss. 205 and 313 of the Code. In light of the guidelines A __
- laid down by this Court, further directions on the same
issue by the High Court were wholly uncalled for. The
impugned order containing general directions to the
lower courts is set aside. However, if the accused moves
the trial court with an application u/s 205 of the Code for B
exemption from personal attendance within the time
stated, the exemption granted to her by the High Court
shall.continue to be in force till her application is disposed
of by the trial court. [paras 17 and 18] [452-C-D; F-G]

S. Palani Velayutham & Ors. Vs. District Collector, C
=
Tirune/veli, Tamil Nadu & Ors. 2009 (12) SCR 1215 (2009)
10 sec 664-referred to.
Case Law Reference:
D
> ): 1996 (2) KLT 482 cited par.a_2
2005 (3) KLT 955 cited para 2
1999 (3) KLT 714 cited para 2
2000 (2) KLT 756 cited para 2 E
1972 K.L.T. 794 cited para 2
2005 (3 ) SCR 857 relied on para 7
2001 (2 ) Suppl. SCR 219 reaffirmed para 2 F
2009 (5) SCR 976 relied on para 9
1978 (1) SCR 749 relied on para 10
2006 (7 ) Suppl. SCR 174 relied on para 11
G
2000 (3 j Suppl. SCR 658 relied on para 12
2009 (12) SCR 1215 referred to para 17

H
442 SUPREME COURT REPORTS [2011) 1 S.C.R.

A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1854 of 2008.

From the Judgment & Order dated 04.09.2008 of the High
Cburt of Kerala at Ernakulam in Criminal Misc. Case No. 1977
'-
of 2007.
B
Sumita Hazarika, Z.K. Jami, Tapesh Kumar Singh, Gopal
Jha, Ashutosh, G. Prakash, Beena Prakash, V. Senthil, Sibo
Sankar Mishra for the appearing parties.
"
c The Judgment of the Court was delivered by

D.K. JAIN, J.: 1. Challenge in this appeal, by special
: leave, is to the order dated 4th September, 2008 passed by a
learned Single Judge of the High Court of Kerala in Crl. M.C.
No.1977 of 2007 whereby a number of general directions have
D been issued to all the criminal courts, which are called upon to
hold trials, particularly in cases involving an offence under "'
Section 138 of the Negotiable Instruments Act, 1881 (for short
"the N.I. Act"), as also in all other cases involving offences which
are technical in nature and do not involve any moral turpitude.
E
2. In view of the controversy at hand, it is unnecessary to ·
state the facts giving rise to this appeal in detail, except to note
that the· present case arises out of a complaint filed under .,.,,
Section 138 of the N.I. Act. On being summoned by the
F Magistrate, the accused preferred a petition before the High
Court under Section 482 of the Criminal Procedure Code, 1973
(for short "the Code"), inter alia, praying for dispensing with her
personal appearance before the Magistrate. As afore-stated,
the High Court, while allowing the said application, and
G permitting the accused to appear before the Trial Court through
her counsel, felt that there was great need for rationalising,
humanising and simplifying the procedure in criminal courts with
particular emphasis on the attitude to the "criminal with no
1

moral turpitu de" or the criminal allegedly guilty of only a
1

technical offence, including an offence under Section 138 of the
H
TGN KUMAR v. STATE OF KERALA AND ORS. 443

-
[D.K. JAIN, J.]
,
N.I. Act. Relying on the decision of this Court in Bhaskar A
Industries Ltd. Vs. Bhiwani Denim & Apparels Ltd. & Ors. 1 and
of the Kerala High Court in Saseendran Nair Vs. General
Manager2; K.S.R. T.C. Vs. Abdul Latheef3; Raman Nair Vs.
State of Kera/a 4; Noorjahan Vs. Moideen 5 and Helen Rubber
Indus.tries & Ors. Vs. State of Kera/a & Ors. 6, the learned B
Judge ~as issued the- following 'rules of guidance', with a
direction that these can and must certainly be followed by the
court below in the instant case as also by all criminal courts
which are called upon to deal with trials under Section 138 of
the N.I. Act:- c
"i) Hereafter in all 138 prosecutions, the very fact that the
prosecution is one under Section 138 of the Negotiable
Instruments Act shall be reckoned as sufficient reason by
all criminal courts to invoke the discretion under Section
205 Cr.P.C and only a summons under Section 205 D
Cr.P.C shall be issued by the criminal courts at the first
instance. In all pending 138 cases also applications under
Section 205 Cr.P.C shall be allowed and the accused shall
be permitted to appear through thei{counsel.
E
ii) The plea whether of guilty or of innocence can be
recorded through counsel duly appointed and for that
purpose personal presence of the accused shall not be
insisted.

iii) Evidence can be recorded in a trial under Section 138 F
of the Negotiable Instruments Act in the presence of the
counsel as enabled by Section 273 Cr.P.C when the
accused is exempted from personal appearance and for
~

1. c2001) 7 sec 401. G
2. 1996 (2) KLT 482.
3. 2005 (3) KLT 955.
4. 1999 (3) KLT 714.
5. 2000 (2) KLT 756.
6. 1972 K.L.T, 794.
I H
444 SUPREME COURT REPORTS [2011] 1 S.C.R.

A that purpose, the personal presence of the accused shall
not be insisted.

iv) Examination under Section 313(b) Cr.P .C can be
dispensed with under the proviso to Section 313(1) and if
the accused files a statement explaining his stand, the
B
same can be received by the court notwithstanding the
·absence of a provision similar to Section 233 and 243 ·
Cr.P.C in the procedure for trial in a summons case. The
power and the obligation to question the accused to enable
him to explain the circumstances appearing in evidence
c against him must oblige the court in such situation to
accept and consider the written statement made by the
accused.

v) To receive the judgment aiso, it is not necessary· or
D essential to insist on the personal presence of the -,I. '
accused if the sentence is one of fine or the judgment is
,
.. one of acquittal. After the pronouncement of judgment, the
case can be posted to a specific date with directions to
the accused to appear in person to undergo the sentence.
E By that date, it shall, of course, be open to the accused to
get the order of suspension of the superior court produced
before court. ~

vi) Where warrants are to be issued in a 138 prosecution,
ordinarily a bailable warrant under Section 88 Cr.P.C must
F be issued at the first instance before a non-bailable
warrant without any stipulations under Section 87 Cr.P.C
is issued.

vii) The above stipulations can only be reckoned as
G applicable in the ordinary circumstances and are not
intended to fetter the discretions of the court to follow any
different procedure if there be compelling need. In such
event, the orders/directions of the Magistrate shall clearly
show the specific reasons as to why deviations are
H resorted to.
TGN KUMAR v. STATE OF KERALA AND ORS. 445
[D.K. JAIN, J.]
~ viii) Needless to say, any person having a grievance that A
the above procedure has not been followed unjustifiably ·
shall always have the option of approaching this Court for
directions under Section 482 Cr.P.C. The Sessions
Judges and the Chief Judicial Magistrates must also
ensure that these directions are followed in letter and spirit ·B
by the subordinate courts. Commitm~nt to human rights
and the yearning to ensure that courts are user friendly are
--,: '"" assets to a modern judicial personality and assessment
'·
of judicial performance by the superiors must make note
of such commitments of a judicial officer. c
ix) Even though the above directions are issued with
specific reference to prosecutions under Section 138 of
the Negotiable Instruments Act, they must be followed in
all other cases also where the offence alleged is technical
> )< D
and involves no moral turpitude."
3. Being aggrieved with the order granting a general
exemption to the accused from per!;onal appearance before
the Trial Court, the complainant has filedJbi.s_appeal. · _
...... -.-,.~- - -··------ -;'":·· ., -·-
4. Ori 17th November, 2008, while granting l~ave in this I
E
matter, a bench of two learned judges referred the [nstant case
to a larger Bench, posing the following qcyestion for
determination:
"One of the questions which arises for consideration in this
F
special leave petition is as to whether the High court in
exercise of its jurisdiction under Sections 482 and 483 of
the Code of the Criminal Procedure and/or under Article
227 of the Constitution of India could issue guidelines
.>-
directing all courts taking cognizance of offences under
section 138 of the Negotiable Instruments Act inter a/ia to G
invoke the discretion under Section 205 of the Code of
Criminal Procedure and only with a further direction that
summons under Section 205 shall be issued at the first
instance. Keeping in view importance of the question
involved as also the various decisions of this Court upon H
446 SUPREME COURT REPORTS [2011] 1 $'.C.R.

A which the learned Judge of the High Court has placed
reliance, in our opinion, we think that this is a matter which
should be heard by a larger Bench. It is directed
accordingly."

B. This is how the present appeal has been placed before
this Bench.

5. Having heard learned counsel for the parties, we are
convinced that the impugned order is unsustainable.

6. Section 205 of the Code, which clothes the Magistrate
C with the discretion to dispense with the personal appearance
of the accused, reads as 'follows:

"205. Magistrate may dispense with personal
attendance of accused.-(1) Whenever a Magistrate
o issues a summons, he may, if he sees reason so to do,
dispense with the personal attendance of the accused and
permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may,
in his discretion, at any stage of the proceedings, direct
E the personal attendance of the accused, and, if necessary,
enforce such attendance in the manner hereinbefore
provided."

7. The Section confers a discretion on the court to exempt
F an accused from personal appearance till such time his
appearance is considered by the court to be not necessary
during the trial. It is manifest from a plain reading of the
provision that while considering an application under Section
205 of the Code, the Magistrate has to bear in mind the nature
G~ J>f the case as also the conduct of the person summoned. He
shall examine whether any useful purpose would be served by
requiring the personal attendance of the accused or whether
the progress of the trial is likely to be hampered on account of
his absence. (See: S. V. Muzumdar & Ors. Vs. Gujarat State

H 1. (2005) 4 sec 173.
TGN KUMAR v. STATE OF KERALA AND ORS. 447
[D.K. JAIN, J.]
Fertilizer Co. Ltd. & Anr. 7) . Therefore, the sati~faction whether A
or not an accused deserves to be exempted from personal
attendance has to be of the Magistrate, who ,is the master of
the court in so far as the progress of the trial is concerned and
none else.
8. In Bhaskar Industries Ltd. (supra), this Court had laid B
down the following guidelines, which are to be borne in mind
while dealing with an application seeking dispensation with the
personal appearance of an accused in a case under Section
138 of the N.I. Act:
c
"19 .... it is within the powers of a Magistrate and in his
judicial discretion to dispense with the personal
appearance of an accused either throughout or at any
particular stage of such proceedings in a summons case,
if the Magistrate finds that insistence of his personal
0
presence would itself inflict enormous suffering or
> :-: tribulations on him, and the comparative advantage would
be less. Such discretion need be exercised only in rare.
instances where due to the far distance at which the
accused resides or carries on business or on account of
any physical or other good reasons the Magistrate feels E
that dispensing with the personal attendance of the
accused would only be in the interests of justice. However,
the Magistrate who grants such benefit to the accused must
take the precautions enumerated above, as a matter of
course." F
We respectfully concur with the above guidelines and while re-
affirming the same, we would add that the order of the
Magistrate should be such which does not result in unnecessary
harassment to the accused and at the same time does not G
cause any prejudice to the complainant. The Court must ensure
that the exemption from personal appearance granted to an
accused is not abused to delay the trial.
9. In light of the afore-extracted legal principles, the
impugned order is clearly erroneous in as much as the H -
448 SUPREME COURT REPORTS [2011] 1 S.C.R. __ '

A discretion of the Magistrate under Section 205 of the Code
cannot be circumscribed by laying down any general directions
in that behalf. In Manoj Narain Agrawal Vs. Shashi Agrawal &
Ors. 8 , this Court, while observing that the High Court cannot lay
down directions for the exercise o~ piscretion by the Magistrate
8 under Section 205 of the Gode, haa echoed the following views:
"Similarly, the High Court should not have, for all intent and
purport, issued the direction for grant of exemption from
·personal appearance. Such a matter undoubtedly shall be
left for the consideration before the learned Magistrate. We
G are sure that the Magistrate would exercise his jurisdiction
in a fair and judicious manner."
10. It is equally trite that the inherent powers of the High
Court under Section 482 of the Gode have to be exercised
sparingly with circumspection, and in rare cases to correct
0
patent illegalities or to prevent miscarriage of justice. In Madhu
Limaye Vs. The State of Maharashtra, 9 a Bench of three
learned Judges of this Court had observed that:
" ... the following principles may be noticed in relation to the
E exercise of the inherent power of the High Court .... : -
(1) That the power is not to be resorted to if there is a
specific provision in the Gode for the redress of the
grievance of the aggrieved party;

F (2) That it should be exercised very sparingly to prevent
abuse of process of any Court or otherwise to secure the
ends of justice;
(3) That it should not be exercised as against the express
bar of law engrafted in any other provision of the Gode."
G
11. Similarly, while it is true that the power of
superintendence conferred on the High Court under Article 227
of the Constitution of India is both administrative and judicial,
8. c2009) s sec 385.
.H 9. (1977) 4 sec 551.
TGN KUMAR v. STATE OF KERALA AND. ORS. 449
. [D.K. JAIN, J.]
but such power is to be exercised sparingly and only in A
appropriate cases in order to keep the subordinate courts
within the bounds of their authority. In any event; the power of
superintendence cannot be exercised to influence the
subordinate judiciary to pass any order or judgment in a
particular manner. In Jasbir Singh Vs. State of Punjab 10, this B
Court observed that:
"So, even while invoking the provisions of Article 227 of
the Constitution, it is provided that the High Court would
exercise such powers most sparingly and only in
appropriate cases in order to keep the subordinate courts C
within the bounds of their authority. The power of
superintendence exercised over the subordinate courts
and tribunals does not imply that the High Court can
intervene in the judicial functions of the lower judiciary. The
independence of the subordinate courts in the discharge D
of their judicial functions is of paramount importance, just
as the independence of the superior courts in the
discharge of their judicial functions. It is the members of
the subordinate judiciary who directly interact with the
parties in the course of proceedings of the case and E
therefore, it is no less important that their independence -~.
should be protected effectively to the satisfaction of the
litigants." (See also: Trimbak Gangadhar Telang & Anr.
Vs. Ramchandra Ganesh Bhide & Ors. 11; Mohd. Yunus
Vs. Mohd. Mustaqim & Ors. 12 and State, New Delhi Vs. F
Navjot Sandhu & Ors. 13.)
12. As regards direction (iv) supra to accept and consider
the written statement made by the accused, in our opinion, it
is again not in accord with the language of Section 313 of the
Code as also the dictum laid down by this Court in Basavaraj G

10. (2006) a sec 294.
11. (1977) 2 sec 437.
12. (1983) 4 sec 566.
13. (2003) a sec 641. H
'
450 SUPREME COURT REPORTS [2011] 1 S.C.R.

-A R. Patil & Ors. Vs. State of Karnataka & Ors. 14• Section 313 '
of the Code deals with the personal examination of the
accused, and provides that:
"313. Power to examine the accused.-(1) In every
inquiry or trial, for the purpose of enabling the accused
B
personally to explain any circumstances appearing in the
evidence against him, the Court-
(a) may at any stage, without previously warning the
accused, put such questions to him as the Court
c considers 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:

D 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).
.................................................... ....................... .n
·
E
(emphasis supplie~:Lby us)
'\
13. On the plain language of Section 313, it is evid~nt that
in a summons case, when the personal appearance of the
accused has been dispensed with under Section 205 of the
F Code, a discretion is vested in the Magistrate to dispense with
the rigour of personal examination of the accused under
Section 313 of the Code as well.
14. In Basavaraj R. Patil & Ors. (supra) while advocating
G a pragmatic and humanistic approach in less serious offences,
Thomas, J. speaking for the majority in a Bench of three
learned Judges, explained the scope of clause (b) to Section
313(1) of the Code as follows:

H 14. (?OOO) a sec 740.
TGN KUMAR v. STATE OF KERALA AND ORS. 451
[D.K. JAIN, J.]
"The word "shall" in clause (b) to Section 313(1) of the A
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 prejudice and
disadvantage the court should, in appropriate cases, e.g.,
if the accused satisfies the court that he is unable to reach 8
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 such
hardship and at the same time adopt a measure to comply
with the requirements in Section 313 of the Code in a C
substantial manner. How could this be achieved?
If the accused (who is already exempted from personally
appearing in _the court) makes an application to the court
- praying that he may be allowed to answer the questions
without making his physical presence in court on account o
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:
(a) A narration of facts to satisfy the court of his real E
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 questioning. - F
(c} An undertaking that he would not raise any grievance
on that score at any stage of the case."
-
15. It is manifest from the afore-extracted passage that
dispensation with the personal examination of an accused ·in G
terms of the said provision is within the trial court's discretion,
to be exercised keeping in view certain parameters,
enumerated therein and not as a matter of course.
16. It is true that in direction (vii} supra, the learned Judge
H
452 SUPREME COURT REPORTS [2011] 1 S.C.R.

A has clarified that the stipulations in the preceding paragraphs
are not intended to fetter the discretion of the court to follow
any different procedure, if there be compelling need but the
requirement of recording 'specific reasons' by the Magistrate
for deviating from the directions given in the order, ~s stipulated
8 in the same paragraph, in our view, is by itself tantamount to
putting fetters on the jurisdiction of the Magistrate. This is not
warranted in law.
17. Thus, in the instant case, we have no hesitation in
holding that the High Court exceeded its jurisdiction under
C Section 482 of the Code and/or Article 227 of the Constitution
by laying down the afore-extracted general directions, which are
inconsistent with the clear language of Sections 205 and 313
of the Code, as noted above. We feel that in light of the afore-
noted guidelines laid down by this Court, further directions on
o the same issue by the High Court were wholly uncalled for. In
this regard, the following observations in S. Palani Velayutham
& Ors. Vs. District Collector, Tirune/ve/i, Tamil Nadu & Ors. 15 ,
are quite apt:
"The courts should avoid the temptation to b~come
E authoritarian. We have been coming across several
instances, where in their anxiety to do justice, the courts
have gone overboard, which results in injustice, rather than
justice. It is said that all power is trust and with greater
power comes greater responsibility."
F 18. In light of the foregoing discussion, the appeal is.
allowed, and the impugned order containing general directions
to the lower courts is set aside. However, we direct that if the
accused moves the trial court with an application under Section
205 of the Code for exemption from personal attendance within
G four weeks of the receipt of a copy of this judgment, the
exemption granted to her by the High Court shall continue to
be in force till her application is disposed of by the trial court.
R.P. Appeal allowed.
1s. (2009) 10 sec 664.