Case Note & Summary
The petitioner, Ms. Patricia Reiter, is an accused in a complaint filed by the respondent under Section 138 of the Negotiable Instruments Act, 1881. After the examination of the complainant, the matter was posted for recording the statement of the accused under Section 313(1)(b) CrPC. During this examination, the petitioner expressed her desire to file a written statement, which was recorded in answer to question no. 12. However, instead of granting her an opportunity to file the written statement, the Magistrate posted the matter for defence evidence. The petitioner then filed an application seeking leave to file a written statement under Section 313(5) CrPC. The learned Magistrate rejected this application by an order dated 7.7.2023 on two grounds: first, that the application was frivolous and intended to delay the proceedings, which were already under a time-bound direction from the High Court; and second, that there was no cross-examination of the complainant's evidence and no defence raised, and since the matter was fixed for defence evidence, there was substantial compliance with Section 313(5) CrPC. The petitioner challenged this order by way of a criminal writ petition before the Bombay High Court at Goa. The High Court held that the right of an accused to file a written statement under Section 313(5) CrPC is a valuable right and the Magistrate's discretion must be exercised judiciously. The Court noted that the petitioner had clearly expressed her desire to file a written statement during the Section 313 examination, and the Magistrate ought to have fixed the matter for filing the written statement instead of proceeding directly to defence evidence. The grounds of rejection were found to be perverse and not sustainable. The High Court allowed the petition, set aside the impugned order, and directed the Magistrate to permit the petitioner to file a written statement within a specified period, subject to payment of costs of Rs. 5,000 to the respondent.
Headnote
A) Criminal Procedure - Written Statement under Section 313(5) CrPC - Right of Accused - The accused has a valuable right to file a written statement under Section 313(5) CrPC, and the Magistrate's discretion must be exercised judiciously. Rejection on grounds of delay and absence of cross-examination is not sustainable when the accused expressed desire to file written statement during Section 313 examination. (Paras 4-12)
B) Negotiable Instruments Act - Section 138 - Defence Evidence - Filing of Written Statement - In a complaint under Section 138 of the Negotiable Instruments Act, 1881, the accused is entitled to file a written statement before adducing defence evidence. The Magistrate erred in rejecting the application for leave to file written statement on the ground that the matter was already fixed for defence evidence. (Paras 5-12)
Issue of Consideration
Whether the Magistrate was justified in rejecting the application of the accused/petitioner seeking leave to file a written statement under Section 313(5) of Cr.P.C.
Final Decision
The High Court allowed the petition, set aside the impugned order dated 7.7.2023, and directed the learned Magistrate to permit the petitioner to file a written statement within a period of two weeks from the date of receipt of the order, subject to payment of costs of Rs. 5,000 to the respondent.
Law Points
- Right to file written statement under Section 313(5) CrPC
- Judicial discretion must be exercised judiciously
- Opportunity to file written statement before defence evidence
Case Details
2023 LawText (BOM) (12) 145
Criminal Writ Petition No. 124 of 2023
Mr Sahil Deshprabhu for petitioner, Mr Deepak Gaonkar, Mr Amey Salgaonkar, Mr Shubham Khorjuvekar for respondent
Mr. Somnath Sharad Mandrekar
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Nature of Litigation
Criminal writ petition challenging rejection of application for leave to file written statement under Section 313(5) CrPC in a complaint under Section 138 of the Negotiable Instruments Act.
Remedy Sought
Petitioner/accused sought to set aside the order dated 7.7.2023 rejecting her application for leave to file written statement and to permit her to file the same.
Filing Reason
The Magistrate rejected the application on grounds of delay and absence of cross-examination, which the petitioner contended was perverse and violative of her right to file a written statement.
Previous Decisions
The trial court had posted the matter for defence evidence after recording the accused's statement under Section 313(1)(b) CrPC, despite the accused expressing desire to file a written statement.
Issues
Whether the Magistrate was justified in rejecting the application for leave to file written statement under Section 313(5) CrPC on the grounds of delay and absence of cross-examination?
Submissions/Arguments
Petitioner argued that the right to file written statement is a valuable right and the Magistrate's discretion must be exercised judiciously; the grounds of rejection are perverse.
Respondent argued that the application was frivolous and intended to delay the proceedings, and there was substantial compliance with Section 313(5) CrPC.
Ratio Decidendi
The right of an accused to file a written statement under Section 313(5) CrPC is a valuable right and the Magistrate's discretion to grant leave must be exercised judiciously. Rejection on grounds of delay and absence of cross-examination is not sustainable when the accused has expressed a desire to file a written statement during the Section 313 examination.
Judgment Excerpts
The issue involved in the present petition is in connection with rejection of the application filed by the petitioner seeking leave to file written statement under Section 313(5) of Cr.P.C.
Petitioner is an accused in a case filed by the respondent/complainant for offence punishable under Section 138 of the Negotiable Instruments Act 1884.
While answering such questions put to her, petitioner wished her desire to file written statement which is mentioned in answer to question no.12.
By the impugned order dated 7.7.2023, learned Magistrate rejected said application on two counts.
Mr Deshprabhu for the petitioner strongly contended that valuable right of the petitioner to file written statement in her defence has been taken away by the trial Court on the grounds which are found to be perverse.
Petitioner/accused mentioned that she want to file written statement and the same is recorded as answer to question no.12, Magistrate ought to have fixed the matter for filing written statement.
The right of the accused to file a written statement under Section 313(5) CrPC is a valuable right and the discretion vested in the Magistrate has to be exercised judiciously.
The impugned order is set aside. The learned Magistrate is directed to permit the petitioner to file written statement within a period of two weeks from the date of receipt of this order, subject to payment of costs of Rs.5,000/- to the respondent.
Procedural History
The petitioner/accused was facing trial in a complaint under Section 138 of the Negotiable Instruments Act. After examination of the complainant, the Magistrate recorded the accused's statement under Section 313(1)(b) CrPC on 7.7.2023, during which the accused expressed desire to file a written statement. Instead of granting opportunity, the Magistrate posted the matter for defence evidence. The accused then filed an application for leave to file written statement, which was rejected by the Magistrate on the same day. The accused challenged this order by filing Criminal Writ Petition No. 124 of 2023 before the Bombay High Court at Goa.
Acts & Sections
- Code of Criminal Procedure, 1973 (CrPC): 313(1)(b), 313(5)
- Negotiable Instruments Act, 1881: 138
