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PETITIONER:

USHA K. PILLAI

Vs.

RESPONDENT:

RAJ. K. SRINIVAS AND ORS. ETC.

DATE OF JUDGMENT30/04/1993

BENCH:

AHMADI, A.M. (J)

BENCH:

AHMADI, A.M. (J)

MOHAN, S. (J)

CITATION:

1993 AIR 2090 1993 SCR (3) 467

1993 SCC (3) 208 JT 1993 (3) 254

1993 SCALE (2)734

ACT:

%

Section 313 (1) Cr. P.C.-Scope of-Whether the trial

Magistrate is legally right in examining the Advocate of the

accused in his place in a warrant case.

HEADNOTE:

The daughter of the appellant was married to the respondent

and a girt child was born out of the wed-lock. The couple

went to the U.S.A. alongwith the child, but the latter was

sent back on her mother's behests. While the child was in

the custody of the appellant the mother also came back, and

committed suicide, leaving the child in the custody of the

appellant.

Meanwhile the first respondent married an American girl and

embraced christianity. Thereupon the appellant applied to

the local court for appointment as guardian of the child.

The respondent appeared in court but took the child to

U.S.A. forcibly, and entrusted her to the custody of his

newly wedded wife.

On being appointed as guardian of the child the appellant

filed a complaint of kidnapping against the respondent and

three others. The respondent applied for exemption from

personal appearance in the proceedings in criminal court.

The permission was granted subject to the condition that he

will appear whenever called upon to do so.

On the completion of the evidence, the advocate of the

respondent sought permission for examination under section

313 Cr. P.C. in place of the respondent. Thereupon the

appellant sought direction for personal appearance of the

respondent for being examined under Section 313 Cr. P.C.

The Magistrate dismissed the application of the appellant

This Court examined the provision of Sub Section (1) of

Section 313 Cr. P.C. and,

HELD:Introduced in its present form pursuant to the

recommendations made in the 41st Report of the La*

Commission, sub section (1) of

468

Section 313 begins with the words: "In every inquiry or

trial." (472-B)

The old sub-section (1) of Section 342 has been divided Into

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two (a) & (b). Clause (a) us" the expression 'may' to

indicate dot the matter is left to the discretion of the

court to put questions to the accused at any stage of the

inquiry or trial, whereas clause (b) uses the expression

"shall" to convey that it is mandatory for the court to

examine the accused after the witnesses for the prosecution

have been examined. (472-C)

The proviso was added to sub section (1) with a view to

enabling the court to dispense with the examination of the

under clause (b) in a summons case in the court has already

dispensed with this personal attandence if the court on

completion of the prosection evidence finds that there are

certain circumstances appearing in the evidence against the

accused, the court is obliged by clause (b) to question the

accused before be Ls called upon to enter his defence. (472-

D)

Section 313 (1) applies to all inquiries and trials under

the co&, to give the accused an opportunity to explain the

circumstances appearing against him. The trial court is

empowered by clause (a) to question the at any stage of

inquiry or trial, while clause (b) obligates it to question

the accused before he enters his defence.The rule of audi

alterm partem incorporated therein is intended for the

benefit of the accused. (472-F)

The proviso is in the nature of an exception to dawn (b) of

sub section (1) of section 313 Cr. P.C. and applies to a

sommons case. Where the personal presence of the accused

has been dispensed with, the magistrate can dispense with

the mandatory requirement of clause(b). (472-G)

Since the offence under section 363 [PC is punishable with

imprisonment for a term exceeding two years it is a warrant

cm, so even if the court has dispensed with the personal

attendence of the accused the examination of the accused

u/s 313 Cr. P.C. is mandatory. The examination of a lawyer

would not be sufficient complaince@ with the @ate of the mid

provision. (473-B)

BibhWi Bhushen Dat GWM & Aar. v. State of West Be"W, A.I.R.

(1%9) S.C. 381= 11%9] 2 SCR 104, referred to.

469

In that case this court pointed out that the privilege of

making a statement under Section 342 of the old code, is

personal to the accused. This requirement cannot be

satisfied by examining his pleader in his place, as the

right of the pleader to represent the accused does not

extend to the pleader answering questions under section 342

(now 313) Cr. P.C. (473-E)

This court set aside the impugned order and directed the

trial magistrate, to pass appropriate orders in regard to

the examination of the respondent under section 313 (1) (b)

Cr. P. C. (474-D)

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 398 of

1993.

From the Judgment and Order dated 12.3.1992 of the IVth

Metropolitan Megistrate, Hyderabad in Crl. M.P. No. 92/92

in C.C. No. 234 of 1985.

WITH

Writ Petition No. 623 of 1993.

(Under Article 32 of the Constitution of India)

K.K. Venugopal, L.K. Pandey and S. Anand for the Petitioner.

D.P. Gupta. Solicitor General and Ms. A. Subhashni for the

Respondents.

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The Judgment of the Court was delivered by

AHMADI, J. Special leave granted.

The brief facts leading to this appeal are that the

appellant's daughter Geetha married respondent No. 1

(original accused No. 1) sometime in October 1976 according

to Hindu rites and thereafter left for Ireland. A daughter

was born to the couple on July 27, 1978 in Ireland. She was

named Nivedita. In April 1979, the couple along with the

child moved to the United States of America, the Child

travelling on an Irish passport. In October 1979 Geetha

wrote to her mother. the appellant, expressing her desire

that Nivedita should be brought up under her care in India.

On the appellant expressing her willingness to look after

the child, Nivedita was sent to India via Bombay where the

appellant received her. The child then remained in the

custody of the appellant. In March 1980 Geetha returned to

470

India presumbly because her husband had developer intimacy

with an American girl and had started to ill-treat her.

Within a week after her arrival in India she committed

suicide by setting herself on fire. Nivedita continued to

remain in the care and custody of the appellant. The first

respondent married the American girl, with whom he had

developed intimacy, sometime in the year 1983-84 and

embraced Christianity. Thereupon the appellant filed an

application in the Court of the Chief judge, City Civil

Court, Hyderabad, being O.P. No. 203 of 1984, for appointing

her as the guardian of the person of the minor child under

the provisions of Guardians and Wards Act, 1890, Respondent

No. 1 entered an appearance in the said proceedings through

his Advocate and sought time to file a counter. Leter, he

returned to India on December 14, 1984, After reaching India

he obtained a duplicate passportfor Nivedita and thereafter

with the help of his associates picked up Nivedita fromher

school ignoring the protests of the Head Mistress of the

School. The HeadMistress immediately filed a complaint with

the commissioner of police and informed the appellant about

the same who in turn lodged a First Information Report in

that behalf. On enquiry the appellant's son traced respon-

dent No. 1 and his three companions (who had assisted him in

procuring the child) at the Madras Airport. Despite his

entreaties, respondent No. 1 forcibly took the child to

U.S.A via Singapore. Since then Nivedita is in the custody

of respondent No. 1 and his newly married wife Maureen.

After thus removing the child from the lawful custody of the

appellant, respondent No. 1's Advocate withdrew from the

guardianship proceedings. The Court, however, appointed the

appellant as the guardian of the person of Nivedita. The

appellant also filed a complaint alleging kidnapping against

respondent No. 1 and his three companions who had aided and

abetted him in the Court of the IVth Metropolitan

Magistrate. Hyderabad, which came to be numbered as C.C.No.

234 of 1985. Process was issued in the said proceedings

land the accused persons were duly served. The respondents

thereafter moved an application under Section 482 of the

Code of Criminal Procedure, 1973 (hereinafter called 'the

Code') for quashing the process on the plea that in law a

father is entitled to his daughter's custody and hence

cannot be liable under section 363, [PC. In that

application the High Court directed that the child be

produced before it. However, the child was not produced

before the Court and the Court ultimately dismissed the

application against which a Special Leave Petition was filed

in this Court. This Court also rejected the Special Leave

Petition. On the other hand while the application under

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Section 482 of the Code was pending in the High Court, the

father of respondent No. 1 filed an application for

rescinding the order appointing the appellant as the

guardian of the person of Nivedita. In the meantime, the

Supreme Court in New Jersey U.S.A., was moved which court

passed an order permitting respondent No.1 to retain No. 1

to retain the custody of the child on the ground that the

Indian Courts had violated the due process clause. The

Chief Judge, City Civil Court, Hyderabad, ultimately

dismissed the father's application for rescinding the

471

earlier order by which the appellant was appointed the

guardian of the person of the child. As staed earlier the

Superior Court, New Jersey, having permitted respondent No.

1 to retain the custody of Nivedita, the child's step-mother

Maureen applied for permission to adopt Nivedita who had by

then been converted to Christianty. On that permission

being granted the adopted mother and respondent No. 1 sent

the Child to a Christian school. In the complaint lodged

against respondent No. 1 and his associates. respondent No.

1 applied for exemption from personal attendance which was

granted on condition that he will appear whenever called

upon to do so by the court. Respondent No. 1 was thus

represented in the said complaint through his Advocate. In

the said criminal complaint after framing the charge for

kidnapping evidence of the prosecution witnesses was

recorded in the presence of the Advocate for respondent No.

1 and the other respondents and on completion of the

evidence respondent No. 1's Advocate sought permission to be

examined in place of respondent No. 1 under section 313 of

the Code. This permission was granted and he was examined

under section 313 of the Code. On completion of the

examination the appellant not being satisfied with some of

the replies given by the Advocate filed an application

prayino that respondent No. 1 should be directed to

personally appear in Court and be examined under section 3

13 of the Code. The learned Magistrate dismissed the said

application whereupon the present appeal has been filed on

the plea that no appeal or revision lay against the order

impugned herein. These are the averments on which the

present appeal is founded. The question then is whether the

learned Magistrate was right in examining the Advocate of

respondent No. 1 in place of respondent No. 1 himself under

section 313 of the Code?

Sub-section (1) of section 313 reads as under:

"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 generally on the case:

472

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)."

This sub-section was introduced in its present form pursuant

to the recommendations made in the 41st Report of the Law

Commission. It now begins with the words 'in every inquiry

or trial' to set at rest any doubt in regard to its

application to summons cases. the old sub-section (1) of

section 342 has now been divided into two clauses (a) & (b).

Clause (a) uses the expression 1 may to indicate that the

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matter is left to the discretion of the Court to put

questions to the accused at any stage of the inquiry or

trial whereas clause (b) uses the expression 'shall' to

convey that it is mandatory for the Court to examine the

accused after the witnesses for the prosecution have been

examined before he is called on for his defence. The

proviso is a new provision Which came to be added to sub-

section (1) with a view to enabling the Court to dispense

with the examination of the accused under clause (b) in a

summons case if the Court has already dispensed with his

personal attendance at an earlier point of time. Therefore,

if the Court on completion of the prosecution evidence finds

that there are certain circumstances appearing in the

evidence against the accused, the Court is obliged by clause

(b) to question the accused before he is called on for his

defence. This provision is general in nature and applies to

all inquiries and trials under the Code. The purpose of the

said provision is to give the accused an opportunity to

explain the circumstances appearing against him in evidence

tendered by the prosecution so that the said explanation can

be weighed vis-a-vis the prosecution evidence before the

Court reaches its conclusion in that behalf. It is thus

clear on a plain reading of section 313 (1) of the Code,

that the Court is empowered by clause (a) to question the

accused at any stage of the inquiry or trial while clause

(b) obligate the Court to question the accused before he

enters of his defence on any circumstance appearing in the

prosecution evidence against him. The section incorporates

a rule of audi alteram partem and is actually intended for

the benefit of the accused person.

The newly added proviso is in the nature of an exception to

clause (b) of subsection (1) of section 313 of the Code. It

applies to a summons-case; it states in no uncertain terms

that in a summons-case where the court has dispensed with

the personal attendance of the accused it would be open to

the court to dispense with the examination of the accused

under clause (b) of section 313 (1) of the Cods. Even in

cases where the personal presence of the accused has been

dispensed with under section 205(1) or section 317 of the

Code the Magistrate can dispense with the mandatory

requirement of clause (b) only in a summons-case i.e, a case

other than a warrant-case This is clear on plain reading of

the definitions of a summons-

473

case in Section 2(w)and a warrant-case in section 2(x)of the

Code. 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 examination of the accused

under clause (b) of section 313 of the Code because such

examination is mandatory. If the accused is a company or a

juridical person it may be open to examine the person

conversant with the facts of the case. It would thus appear

that the mandate of section 313 (1) (b) demands that the

accused person, if not a company or other juridical person,

most be personally examined to explain the incriminating

circumstances appearing against him in the prosecution evi-

dence and the examination of his lawyer would not be

sufficient compliance with the mandate of said provision.

A similar question arose for consideration in Bibhuti

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Bhushan Das Gupta & Anr. v. State of West Bengal [AIR (1969)

SC. 381 = [1969] 2 SCR 1041 under the provisions of the old

Code. In that case this Court noticed that the accused was

not personally examined under section 342 of the Code. It

was submitted that the trial was vitiated as the accused was

not personally examined as required by section 342 of the

old Code. The said argument was sought to be repelled on

the ground that the examination of the pleader was

sufficient compliance with the said provision since the

pleader was authorised to appear on behalf of the accused

and do all acts which the accused could personally do.

Dealing with this submission this court on a reading of

Section 342 pointed out that the privilege of making a

statement under that section is personal to the accused and

the requirement cannot be satisfied by examining his pleader

in his place. The right of the pleader to represent the

accused does not extend to the pleader answering questions

under section 342 in place of the accused person. The

submission that such a view will cause inconvenience and

harassment to the accused was also repelled in the following

words:

"We are not impressed with the argument that an accused

person will suffer inconvenience and harassment if the Court

cannot dispense with his attendance for purposes of section

342. The examination under the section becomes necessary

when at the close of the prosecution evidence the magistrate

finds that there are incriminating circumstances requiring

an explanation by the accused."

474

Proceeding further this Court observed as under

"There are exceptional cases when an examination of the

accused personally under section 342 is not necessary or

possible. Where the accused is a company or other juridical

person it cannot be examined personally. It may be that the

Court may then examine a director or some other agent on its

behalf."

It is another matter that in that case this Court did not

interfere with the conviction and sentence on the ground

that the non-examination of the accused had not caused any

prejudice and in the absence of material showing prejudice

the conviction and sentence could be sustained by virtue of

old section 537 (section 465 of the new Code).

In the result the order impugned in the present appeal/writ

petition of the learned Magistrate cannot be allowed to

stand, more so in the instant case for the reason that the

accused may raise the plea of violation of the due process

clause if the order is sought to be executed in the foreign

court. We, therefore, set aside the order of the learned

Magistrate and direct him to pass appropriate orders in the

light of this judgment in regard to the examination of the

accused under section 313(1) (b) of the Code. As the

prosecution is pending since long, the learned Magistrate

will take it up immediately,

SPS. Appeal disposed of.

475