Bombay High Court
GAJENDRAN S.versusTHE STATE OF MAHARASHTRA AND ANR
- Decided
- Disposal
- Disposed Off
Holding
The Court quashed the orders rejecting exemption and allowed the applicants to seek exemption by filing affidavits and questionnaires as prescribed in paragraph 31 of Prakash Chimanlal Sheth.
Summary
The applicants, senior citizens aged 86 and 82, filed criminal applications under Section 528 of the Bharatiya Nagarik Suraksha Sanhita (equivalent to Section 482 CrPC) challenging orders that rejected their exemption from personal appearance, issued non‑bailable warrants and directed them to attend court for recording statements. They relied on the Supreme Court’s decision in Basavaraj R. Patil & Others v. State of Karnataka and on paragraph 31 of the judgment in Prakash Chimanlal Sheth v. T. Ramalingam Nadar, which permits exemption from personal appearance in exigent circumstances upon filing an affidavit and answering a questionnaire. The respondent had no objection to this procedure. By consent of the parties, the High Court quashed the impugned orders, directed the applicants to file affidavits and questionnaires within ten days as per the Sheth judgment, and ordered the trial court to decide the matter expeditiously. The applications were thereafter disposed of.
Issues considered
- Whether the orders rejecting exemption from personal appearance and issuing non‑bailable warrants can be set aside under Section 313 CrPC in view of the applicants' age and hardship.
- Whether the procedure laid down in paragraph 31 of Prakash Chimanlal Sheth’s judgment can be applied to allow the accused to answer Section 313 questions through counsel.
Legislation cited
- Bharatiya Nagarik Suraksha Sanhita, 2023 — s. 528
- Code of Criminal Procedure, 1973 — s. 313, 482
Subjects
- Section 313 CrPC
- exemption from personal appearance
- senior citizen
- non‑bailable warrant
- questionnaire
- affidavit
- humanitarian exemption
- criminal procedure
Judgment
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1664 OF 2026
AND
CRIMINAL APPLICATION NO. 1665 OF 2026
Venkata Bhaskara Rao Maddala …Applicant
Vs.
State of Maharashtra and Anr. … Respondents
AND
CRIMINAL APPLICATION NO. 1673 OF 2026
AND
CRIMINAL APPLICATION NO. 1674 OF 2026
Gajendran S. …Applicant
Vs.
State of Maharashtra and Anr. … Respondents
Ms. Priyanka Dubey a/w. Saurabh Kamble, Vikrant Pandey and
Adnan Khan i/b Hedgehog and Fox LLP, for the Applicant.
Mr. Yashpal Thakur a/w. Nimeet Sharma and Mr. Vinit Vaidya i/b
MZM Legal LLP, for the Respondent No.2.
Ms. Savita M. Yadav, APP for State in APL-1664-2026.
Ms. D.P. Jadhav, APP for the State in APL-1665-2026.
Mr. S.V. Walve, APP for the State in APL-1673-2026 & APL-1674-
2026.
CORAM: MADHAV J. JAMDAR, J.
DATE : 8th SEPTEMBER, 2026
P. C.:
1. In these applications filed under Section 528 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (Section 482 of the
Criminal Procedure Code, 1973), the Applicants are challenging
orders dated 31st July 2026 and 10th August 2028 as also 17th
August 2026 by which application for exemption of the Applicant
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i.e., accused has been rejected, non-bailable warrants were issued
and accused were directed to attend the Court for recording
statement in-person as their advocate was not ready to record the
statement on his behalf.
2. A chart provided by learned counsel appearing for the
Applicants setting out the impugned orders in each of the Criminal
Applications are set out hereinbelow for ready reference :
Sr. Name of Application Summons Accused Order
No. Applicant Nos. Case No. No. Dated
APL/ 31-07-
Venkata
1165/2026 & 10560/2016 2026 &
1 Bhaskar A-6/A-7
APL/1664/ 2216/2017 17-08-
Rao
2026 2026
APL/ 31-07-
Gajendran 1674/2026 & 10560/2016 2026 &
2 A-3/A-4
S. APL/1673/ 2216/2017 17-08-
2026 2026
3. Learned counsel appearing for the Applicants submits that
the Applicant-Venkata Bhaskara Rao Maddala is a senior citizen of
86 years and the Applicant-Gajendran S is a senior citizen of 82
years. She relies on the judgment of the Supreme Court in the case
of Basavaraj R. Patil & Others Vs. State of Karnataka and Others 1
1 (2008) 8 SCC 740
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and more particularly paragraph Nos. 21 to 26 and submitted that
if Questionnaire under Section 313 of Code of Criminal Procedure,
1973 is given, the Applicant is ready to comply with the same.
4. Learned counsel appearing for the Respondent No.2 has no
objection for said course of action. However, he relied on a
judgment of learned Single Judge in the case of Prakash Chimanlal
Sheth Vs. T. Ramalingam Nadar @ Ramalingam Thirivium Nadar &
2
Ors. and more particularly certain observations made in
paragraph No. 31 of the same. He states that the Applicants be
directed to comply with the requirements as set out in the said
judgment of Prakash Chimanlal Sheth (supra).
5. The relevant part of paragraph 31 of Prakash Chimanlal
Sheth (supra) read as under:-
“31. In the case of Basavaraj R. Patil And Others V/s.
State of Karnataka And Others (supra) the Court dealt
with questions, when a criminal Court completes
prosecution evidence (other than in summons cases) is it
2 Criminal Application No. 490 of 2020 dt. 14-09-2022
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indispensably mandatory that the accused himself
should be questioned ? Can not the court allow the
Advocate to answer such questions on behalf of the
accused atleast in some exigent conditions ? Since the
two Judges Bench in Usha K. Pillai V/s. Raj K. Srinivas
and Others (supra) held that there is no alternative to it
permissible under law, reference was made to larger
Bench. One of the contentions raised by the appellants
was that if the Court did not put questions under Section
313 of the Code there is no reason for the complainant
to be aggrieved thereof because the prejudice can be
caused only to the accused due to non-compliance with
the said provision. The other contention was that no
criminal Court can be rendered absolutely powerless to
deal with situation like this, i.e. if the accused is in such
a far away country and when he has to incur a
expenditure and long journey solely for the purpose of
answering the Court questions, he himself pleaded that
his counsel may be allowed to answer such question on
his behalf. The Court analyzed scope of Section 313 of
the Code. The Court however, considered the fact
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whether with revolutionary change in technology of
communication and transmission and the improvement
in facilities for legal aid, is it necessary that in all cases
the accused must answer by personally remaining
present in Court. It was observed that one category of
offences which is specifically exempted from rigour of
Section 313(1)(b) of the Code is summons case. Other
offences generally belong to a different category among
which are included offences punishable with varying
sentences from imprisonment of three years upto
imprisonment for life and death penalty. 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 ? A pragmatic and
humanistic approach is warranted in regard to such
special exigencies. The word ‘shall’ in clause (b) to
Section 313 (1)(b) 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 prejudice and disadvantage the Court should
in appropriate cases eg. if the accused satisfies the Court
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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 such hardship
and at the same time adopt a measure to comply with
the requirements in Section 313 of the Code in
substantial manner. 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 of justifying
exigency the Court can pass appropriate orders thereon,
provided such application is accompanied by an affidavit
shown by the accused himself containing the matters,
viz. a narration of facts to satisfy the Court of his real
difficulties to be physically present in Court for giving
such answers. An assurance that no prejudice would be
caused to him, in any manner, by dispensing with his
personal presence during such questioning. An
undertaking that he would not raise any grievance on
that score at any stage of the case. If the Court is
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satisfied of the genuineness of the statements made by
the accused, it is open to the Court supply the
questionnaire to his Advocate and fix the time within
which the same has to be returned duly answered by the
accused together with properly authenticated affidavit
that those answers were given by the accused himself. If
he does not wish to give any answer to any questions he
is free to indicate that fact. If the accused fails to return
questionnaire with answers he shall forfeit his right to
seek personal exemption from Court during such
questioning. If the above course is adopted in
exceptional exigency it would not violate the legislative
intent envisaged in Section 313 of the Code.”
(Emphasis added)
6. Ms. Dubey, learned counsel appearing for the Applicants, on
instructions, states that the Applicants have no objection for said
course of action. As learned counsel appearing for the Applicants
has no objection for following the procedure as laid down in
paragraph 31 of Prakash Chimanlal Sheth (supra), Mr. Thakur,
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learned counsel of the Respondent No.2, on instructions, states
that the applications be allowed by consent.
7. Accordingly, by consent of parties, the following order is
passed :-
I. The impugned orders as set out in paragraph No. 2 above in
the chart are quashed and set aside.
II. The respective Applicants shall file applications supported by
affidavit as contemplated in paragraph No. 31 of Prakash
Chimanlal Sheth (supra) within a period of 10 days from
today.
III. If such applications are filed, learned Trial Court is requested
to decide the same in accordance with law expeditiously.
8. The Applications are disposed of in above terms.
[MADHAV J. JAMDAR, J.]
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