http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

     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.