http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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

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

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