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PETITIONER:

BASAVARAJ R. PATIL AND OTHERS

Vs.

RESPONDENT:

STATE OF KARNATAKA AND OTHERS

DATE OF JUDGMENT: 11/10/2000

BENCH:

S.N.Variava, K.T.Thomas

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

J U D G M E N T THOMAS, J. Leave granted. When a

criminal court completes prosecution evidence (other than in

summons cases) is it 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 at least in some exigent conditions? A two Judge

Bench of this Court has held in Usha K. Pillai vs. Raj K.

Srinivas & ors. {1993(3) SCR 467} that there is no

alternative to it permissible under law. When such an issue

arose in this case before this Court, a Bench of two Judges

made a reference to a larger Bench for reconsideration of

the legal position stated in Usha K. Pillai (supra).

The aforesaid question arose in this case from the

following factual background: First appellant a software

engineer (now stationed in USA) is the husband of second

respondent Ms. Arundathi. Their marriage was solemnised in

November 1992 and a female child was born to them. But

eventually their connubial life passed through bad weather

and the situation reached a stage when Arundathi moved a

Judicial Magistrate of First Class for maintenance allowance

from her husband. An order in her favour was passed by the

said magistrate under Section 125 of the Code of Criminal

Procedure (for short the Code).

On 10.3.1993, Arundathi lodged a complaint with the

police alleging, inter alia, that her husband and his sister

(Kumari Jaya second appellant) and their parents had

ill-treated Arundathi for not bringing more dowry; and that

she was pestered with persistent demand for more amount of

dowry. The police conducted investigation on the said

complaint and laid a charge-sheet against both the

appellants and their parents. The trial court discharged

the mother of the appellants at the initial stage itself and

framed a charge against the appellants and their father for

offences under Section 3 and 4 of the Dowry Prohibition Act

and also under Section 498-A of the Indian Penal Code.

Prosecution examined five witnesses and closed the

evidence. When the next stage for examination of the

accused under Section 313 of the Code reached the trial

court passed the following proceedings:

Evidence closed and statement under Sec/313 Cr.P.C.

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was kept ready to give opportunity to the accused as

prescribed under Sec.313 Cr.P.C. Statement of A-2 father

recorded who denied every circumstance, but did not add any

further statement. The counsel for the accused filed

application for dispensing with the questioning of A-1 &

A-4. As A-1 is in America and A-4 is a student studying in

Gadag, the counsel has endorsed on their statement that A-1

and A-4 have nothing to say by way of their statements.

Considering the reality, A-1 has to come from America the

case will unnecessarily be delayed. Hence, on the said

endorsement the counsel for the accused was given the

opportunity to make statement for A-1 and A-4 and their

physical presence is dispensed with. The case is posted for

argument.

The trial magistrate thereafter proceeded to hear the

arguments and finally passed a judgment acquitting all the

accused of the offences charged. Arundathi then filed a

revision before the High Court challenging the aforesaid

order of the acquittal. A Single Judge of the High Court

heard the revision and learned Judge found that as per the

decision of this Court in Usha K. Pillai (1993 (3) SCR

467), trial court has no other alternative and has no

discretion to dispense with the examination of the accused

personally under Section 313 of the Code. Hence the learned

Single Judge set aside the order of acquittal passed by the

trial court and remitted the case to the trial court with a

direction to dispose it of afresh after examining the three

accused under Section 313 of the Code.

The father of the appellants passed away in the

meanwhile. Hence this appeal was filed by the remaining

accused who are the husband and sister-in-law of Arundathi.

One of the contentions raised by the appellants is 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. Next

contention is more important and that was pressed into

service here, that no criminal court can be rendered

absolutely powerless to deal with a situation like this,

i.e. if the accused is in such a far away country and when

he has to incur a whopping expenditure and undertake a

tedious long distance journey solely for the purpose of

answering the court questions he himself pleaded that his

counsel may be allowed to answer such questions on his

behalf.

We are not inclined to deal with the first contention

in this case because the High Court interfered with the

order in exercise of its revisional jurisdiction. Such

jurisdiction can be invoked even suo motu and therefore it

is immaterial whether the power of the High Court was

exercised on a motion made by the complainant. Now, for

dealing with the second contention we may extract Section

313 of the Code:

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 accused, put such questions

to him as the Court considers necessary; (b) shall, after

the witnesses for the prosecution have been examined and

before he is called on for his defence, question him

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generally on the case: Provided that in a summons-case,

where the Court has dispensed with the personal attendance

of the accused, it may dispense with his examination under

clause (b). (2) No oath shall be administered to the

accused when he is examined under sub- section (1). (3) The

accused shall not render himself liable to punishment by

refusing to answer such question, or by giving false answers

to them. (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.

The forerunner of the said provision in the Code of

Criminal Procedure 1898 (for short 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 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, for the

purpose aforesaid, question him generally on the case after

the witnesses for the prosecution have been 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 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 has

committed. (4) No oath shall be administered to the accused

when he is examined under sub- section (1).

Dealing with the position as the Section remained in

the original form under the old Code, a three Judge Bench of

this Court (Fazal Ali, Mahajan and Bose, JJ) interpreted the

section in Hate Singh Bhagat Singh vs. State of Madhya

Bharat (AIR 1953 SC 468) that the statements of the accused

recorded by committal magistrate and the Sessions Judge are

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.

Parliament, thereafter, introduced Section 342A 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.

In Bibhuti Bhusan Das Gupta & anr. vs. State of West

Bengal {1969(2) SCR 104}, another three Judge Bench (Sikri,

Bachawat and Hegde, JJ) dealing with the combined operation

of Section 342 and 342A of the old Code made the following

observations: Under Section 342A only the accused can give

evidence in person and his pleaders evidence cannot be

treated as his. The answers of the accused under s.342 is

intended to be a substitute for the evidence which he can

give as a witness under sec. 342A . The privilege and the

duty of answering questions under sec. 342 can not be

delegated to a pleader. No doubt the form of the summons

show that the pleader may answer the charges against the

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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 questioned and his

pleader cannot be examined in his place.

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 the conclusion that-

(i) in summons cases where the personal attendance of

the accused has been dispensed with, either under section

205 or under section 540A, the court should have a power to

dispense with his examination; and (ii) In other cases,

even where his personal attendance has been dispensed with,

the accused should be examined personally.

The said recommendation has been followed up by the

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 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

Commission in the same Report:

We have, after considering the various aspects of the

matter as summarized above, come to the conclusion that

section 342 should not be deleted. In our opinion, the

stage has not yet come for its 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.

The position has to be considered in the present set

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 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 (supra) 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 was Section 363 of the

IPC. The two Judge Bench held thus:

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

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

317 of the Code, the court cannot dispense with the

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examination of the accused under clause (b) of section 313

of the Code because such examination is mandatory.

Contextually we cannot bypass the decision of a three

Judge Bench of this Court in Shivaji Sahabrao Bobade & anr.

vs. State of Maharashtra & anr. {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 in that case were considering the

fallout of omission to put to the accused a question on a

vital circumstance appearing against him in the prosecution

evidence. The three Judge Bench made the following

observations therein:

It is trite law, nevertheless fundamental, that the

prisoners 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 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 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 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 accused had been

questioned at the proper time in the trial court 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.

The above approach shows that some dilution of the

rigor of the provision can be made even in the light of a

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.

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 the evidence against him. In Jai Dev vs.

State of Punjab (AIR 1963 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:

The ultimate test in determining whether or not the

accused has been fairly examined under section 342 would be

to enquire 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 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.

Thus it is well settled that the provision is mainly

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intended to benefit the accused and 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 partem. The

word may in clause (a) of sub-section (1) in Section 313

of the Code indicates, without any doubt, that even if the

court does not put any question under that clause the

accused cannot raise any grievance of it. But if the court

fails to put the needed question under clause (b) of the

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.

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 that this is the requirement

and would be the general rule. However, if remaining

present involves undue hardship and large 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 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 be

rendered helpless in such a situation?

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 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 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?

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 has the same right (vide

Section 247). Even the accused involved in offences

exclusively triable by the Court of sessions can also

exercise such a right to put in written statements [Section

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233(2) of the Code]. It is common knowledge that most of

such written statements, if not all, are prepared by the

counsel 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.

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 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 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 this could 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 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 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. (c) An undertaking that he would not raise any

grievance on that score at any stage of the case.

If the court is satisfied of the genuineness of the

statements made by the accused in the said application 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 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 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 photocopy or carbon copy of

the questionnaire before it is supplied to the accused for

answers]. 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 questioning.

In our opinion, if the above course is adopted in

exceptional exigency it would not violate the legislative

intent envisaged in Section 313 of the Code.

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In the present case the trial court can pass

appropriate orders if an application is made by the accused

relating to the examination under Section 313 of the

Code, in the light of the legal principles stated above.

This criminal appeal is disposed of accordingly.