Holding

When possession of contraband is proved, the accused bears the onus of establishing lack of conscious possession, and the trial court must address the possession aspect under Section 313 CrPC; however, the High Court’s acquittal was upheld as the omission did not amount to a fatal infirmity.

Summary

The accused were apprehended while sitting on gunny bags containing poppy husk and were convicted under Section 15 of the NDPS Act for possession of contraband. The High Court acquitted them, holding that there was no evidence of conscious possession and that no question on possession was put to them under Section 313 of the CrPC. On appeal, the Supreme Court affirmed that once possession is proved, the accused must establish lack of conscious possession, and the trial court is obliged to put the possession aspect before the accused under Section 313. Although the Court noted that the trial court failed to ask the possession question, it held that this omission did not constitute a fatal infirmity warranting interference. Consequently, the appeal was dismissed and the acquittal upheld.

Issues considered

Whether the fact that the accused were sitting on bags containing poppy husk establishes conscious possession under the NDPS Act.
Whether the burden of proving lack of conscious possession shifts to the accused once possession is established, pursuant to Sections 35 and 54 of the NDPS Act.
Whether the failure to put questions on the possession aspect under Section 313 CrPC vitiates the trial proceedings.
Interpretation of the terms 'may' and 'shall' in Section 313(1) of the CrPC.
Whether the High Court's acquittal should be set aside on the ground of procedural irregularity.

Legislation cited

Code of Criminal Procedure, 1973s. 205, s. 313, s. 540-A
Narcotic Drugs and Psychotropic Substances Act, 1985s. 15, s. 35, s. 54

Subjects

NDPS Actconscious possessionSection 313 CrPCburden of proofpresumptionnatural justiceacquittalpossession of contraband

Judgment

[2009] 2 S.C.R. 470

A STATE OF PUNJAB
v
HARi SINGH & ORS.
Criminal Appeal No. 319 of 2009
FEBRUARY 16, 2009
B
(DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.)
NARCOTIC DRUGS AND PSYCHOTROPIC •
SUBSTANCES ACT, 1985:
c
s. 15 rlw ss. 35 and 54 - Possession of contraband item
-- 'Conscious possession' - Accused found sitting on gunny
bags containing poppy husk - Held: Once possession is
proved, .the person who claims that it was not a conscious
D possession has to establish it - In the instant case, though
there was evidence regarding conscious possession, no {.
question relating to possession was put to accused uls 313 Cr
P C, High Court rightly acquitted the accused - Code of
Criminal Procedure, 1973 - s. 313.
E CODE OF CRIMINAL PROCEDURE, 1973:
s. 313 - Examination of accused - Accused found in
possession of contraband articles and prosecuted for
commission of offence punishable uls 15 of 1985 Act - Plea
of accused that during trial no question relating to possession
F was put to any of them uls 313 - Held: - When accused were
examined uls 313, the essence of accusation was not brought
to their notice, more particularly, the possession aspect- Such
omission vitally affects the prosecution case - Guidelines for
examination u/s 313 of accused who is already exempted from
G personal appearance - Order of Hfgh Court acquitting the
accused does not suffer from any infirmity to warrant interference
- Narcotic Drugs and Psychotropic Substances Act, 1985 -
ss 15, 35 and 54 - Natural justice - Audi a/term partem.

H 470
STATE OF PUNJAB V. 471
HARi SINGH & ORS.LRS.

Interpretation of Statutes - Expressions 'may' and 'shall' A
l
- Interpretation of.
Words and Phrases:
Expressions 'may' and 'shall' as occurring in clause (a)
and (b) of s.313(1) CrPC - Connotation of. s
The respondents were prosecuted for commission
of offence punishable u/s 15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985, as they were found
sitting on 16 gunny bags of poppy husk. When they saw
the police, they tried to slip away, but the police C
apprehended them. The stand of the accused before the
trial court was that they were falsely implicated in the case
as some of the police officers were inimical to them. The
trial court found the accusation against the accused
established, and convicted and sentenced them to 10 D
years RI and to a fine of Rs. 1 lakh each. The High Court
acquitted the accused accepting their pleas that there was
no evidence to show any conscious possession a.nd no
question regarding possession was put to any of them in
their examination u/s 313 CrPC. Aggrieved, the State filed E
the appeal.
Dismissing the appeal, the Court
HELD: 1.1 Whether there was conscious possession
has to. be determined with reference. to the factual F
backdrop in each case. The fact which can be culled out
from the evidence on record is that the accus.ed persons
were sitting atop gunny bags containing the contraband
articles. Section 15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 makes possession G
of contraband articles an offence and deals with
punishment for contravention in relation to poppy straw.
(Paras 10 and 11) [ 478-8, C]
Superintendent & Remembrancer of Legal Affairs, West
Bengal vs. Anil Kumar Bhunja & Ors. AIR (1980) SC 52 and H
472 SUPREME COURT REPORTS [2009] 2 S.C.R.

A Gunwantlal vs. The State of M. P. Al R (1972) SC 1756 - referred
to.
\ '
I-

Health vs. Drown (1972) 2 All ER 561 (HL) and Sullivan ~

vs. Earl of Caithness (1976) 1 All ER 844 (QBD) - referred to.
1.2 Once possession is established, the person who
B claims that it was not a conscious possession has to
establish it, because how he came to be in possession is
within his special knowledge. Section 35 of the Act gives ~
~
a statutory recognition of this position because of ~

presumption available in law. Similar is the position·. in
c terms of Section 54 where also presumption is available
to be drawn from possession of illicit articles. (Para - 17)
[479-C] ,..
Madan Lal & Anr vs. State of Himachal Pradesh (2003) '----

D
6 SCALE 483 - referred to. 1
2.1 Section 313 Cr.P.C. itself declares its object in ,.>
explicit language that it is "for the purpose of enabling ~
the accused personally to explain any circumstances I
appearing in the evidence against him". At the same time i
~
it s,hould be borne in mind tha.t the provision is 'not
E intended to nail the accused to any position, but to comply
with the most salutary principle of natural justice
enshrined in the maxim audi alteram part.em. The word
"may" in clause (a) of sub-section (1) ins. 313 of the Code
indicates th~t _even if the. court does not put any question ~
F under that clause the accused cannot raise any grievance
for it. But if the court fails to put the needed question under
clause (/:>) of the sub-section it would result in a handicap
to the accused and he can legitimately claim that no
T-
evidence, without affording him 'the opportunity to
G explain, can be used against him. It is now well settled r
that a circumstance about which the accused was not
j:"
asked to explain cannot be used against him. (Para ·31 ·
and 33) [ 484-H; 485-A, B, C]
Jai Dev vs. State of Punjab AIR (1963) SC 612 - relied
H on.

..
STATE OF PUNJAB V. 473
HARi SINGH & ORS.LRS.

) 2.3 The word "shall" in clause (b) to s. 313(1) of the A
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 case, e.g.
if the accused satisfies the court that he is unable to reach .B
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 s. 313 of c
the Code in a substantial manner. (Para - 37) [487-C; DJ
2.4 If the accused (who is already .exempted f~om
personally appearing in the court) makes an application
to the court praying that he may be allowed to answer the
D
• ~
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 matters: (a) a narration of facts to
satisfy the court of his real difficulties to be physically E
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; and (c) an undertaking that he
would not raise any grievance on that score at any stage F
of the case. If the court is satisfied of the genuine".less of
the statements made by the accused in the application
and affidavit, it is open to the court to supply the
questionnaire to his advocate and fix the time within which
the same has to be returned duly answered by the G
"{. accused together with a properly authenticated affidavit
that those answers were given by the accused himself. If
the accused fails to return the questionnaire duly
answered within the time, he shall forfeit his right to seek
personal exemption from court during such questioning. H
474 SUPREME COURT REPORTS [2009] 2 S.C.R.

A If the course, as suggested, is adopted in exceptional
exigency, it would not violate the legislative intent
envisaged ins. 313 of the Code. (Paras - 38-40)[ 487-E, F,
G, H; 488-A, B, C, 0, E]
Basav Raj R. Patil vs. State of Karnataka (2000) 8 SCC
B 740- relied on.

2.6 In the instant case, though, there was evidence
t
regarding conscious possessio"', but no question relating ~

to possession, much less conscious possession, was put
c to the accused u/s. 313 Cr.P.C. The questioning u/s.313 is
not an empty formality. When the accused was examined
u/s.313 Cr.P.C., the essence of accusation was not
brought to his notice, more particularly, the possession
aspect. The High Court's order does not suffer. from any
infirmity to warrant interference. (Paras - 18, 43 and 44)
D ~
[479-0, E, F; 488-G, H; 489-A] ~

Shivaji Sahabrao Bobade vs. State of Mharashtra (1973)
2 SCC 793; A vtar Singh a and Ors. vs. State of Punjab (2002)
7 SCC 419; Bhibuti Bhusan Das Gupta' & Anr. vs. State of
E West Bengal AIR (1969) SC 381 and Hate Singh Bhagat Singh
vs. State of Madhya Bharat AIR (1953) SC 468 - relied on.
Case Law Reference ..
.,._
AIR (1990) SC 52 referred to Para -13
F AIR (1972) SC 1756 referred to Para - 15
(1972) 2 All·ER 561 (HL) referred to Para - 16
(1976) 1 All ER 844 (QBD) referred to Para - 16
(2003) 6 SCALE 483 referred to Para - 17
G AIR (1969) SC 381 relied on Para - 20
.:r
AIR (1953) SC 468 relied on Para - 23
(1973) 2 sec 793 relied on Para - 29
AIR (1963) SC 612 relied on Para - 31
H
STATE OF PUNJAB V. HARi SINGH & ORS.LRS. 475

}
(2000) s sec 140 relied on Para - 41 A
(2002) 1 sec 419 relied on ·Para - 44
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 319 of 2009
From the final Judgement and Order dated 1.7.2005 of B
the High Court of Punjab and Haryana at Chandigarh in Criminal
Appeal No. 2163-SB of 2003.
Kuldip Singh, for the Appellant.
Sheetal Prasad Juneja, for the Respondent. c
The Judgement of the Court was delivered by
DR. ARIJIT PASAYAT, J.
1. Leave granted.
D
2. The State of Punjab is in appeal against the judgment
of a learned Single Judge of the High Court of Punjab and
Haryana, allowing the appeal filed by the present respondents,
who were accused nos.1 to 4. They faced trial for offence
punishable under Section 15 of the Narcotic Drugs and E
Psychotropic Substances Act, 1985 (in short the 'Act'). Each
was sentenced to undergo rigorous imprisonment for ten years·
and to pay a fine of Rs.1,00,000/- each with default stipulations.
They were convicted by the learned Special Judge, Patiala, for
having been found to be in possession of 16 bags of poppy F
husk, each containing 30 kgs.
3. According to the prosecution case, on 9.7.1999, SI
Krishan Kumar along with other police officials and one PW
Gurjail Singh was going from village Kadrabad to Gajewas and
when they were three kilometers away from the village, they G
noticed three men and two women sitting on the bags lying
between the surgarcane fields and a heap of earth. On seeing
the police party, these persons tried to slip away. Sub Inspector
Krishan Kumar stopped the vehicle and apprehended accused
Puran Singh, Hari Singh, Jaswinder Kaur and Charanjit Kaur H
476 SUPREME COURT REPORTS [2009] 2 S.C.R.

1
A whi'le 5 h accused (who was identified as Amrik Singh by Gurjail
Sin_gh) slipped away. The Sub-Inspector sent a wireless
message to the police station and called S.P.Os Rajwinder Kaur
and Surinder Kaur to the spot and in their presence apprised
the apprehended persons that the police want to search the
B bags on which they had been sitting and they could ask for
search being conducted in the presence of a Gazetted Officer
or Magistrate. In response to this, the persons opted for being
searched by a Gazetted Officer. Their statements were recorded
and through wireless, S.I. Krishan Kumar requested DSP,
C Samana Shri Paramvir Gill to reach at the spot and in his presence
the bags were taken and grounds of arrest served upon the
appellants and eventually after receipt of adverse report from
the Chemical Examiner a challan was presented against them.
4. After considering the materials and evidence on record,
D the trial Court came to the conclusion that prima facie a case
under Section 15 of the Act was made out against the accused
and as they pleaded not guilty, the prosecution was called upon
to lead its evidence. It examined SI Manjit Singh (PW-1 ), HC
Rakesh Kumar (PW-2), DSP P.S. Gill (PW-3), Inspector Krishan
E Kumar (PW-4), Gurtej Singh (PW-5) and SI Gurcharan Singh
(PW6).
, 5. After conclusion of the evidence, the incriminating
circumstances appearing in the prosecution case were put to
the accused, who. denied the allegations and asserted that they
f:" were innocent and have been falsely implicated in the case by
"'·
the police due to enmity. Puran Singh asserted that Inspector -
.Paramjit Singh who was posted as SHO, Police Station, Dirba,
DistrictSangrur and ASI Jarnail Singh are inimical towards him.
The police officials had picked up his sons Amrik Singh, Baghel
G Singh and his nephew Paramjit Singh on 16.4.1987. Aggrieved
by this, Puran Singh had filed a writ petition of habeas corpus
and when this petition came up for hearing. Mr. M.L. Bharara,
Superintendent of High Court, who was appointed as Warrant
Officer had also been brought into Police Station by ASI Jarnail
H Singh and when the Warrant Officer inquired about him, the
STATE OF PUNJAB V. 477
HARi SINGH & ORS.LRS. [DR. ARIJIT PASAYAT J.]

Police Officials replied that he had given him a thousand rupee A
;-
as bribe for making a false report. Action under the Contempt
of Courts Act had been initiated against two officials and
Inspector Paramjit Singh had been fined with Rs.1000/- and in
default of payment of fine he was sentenced to undergo SI for a
period of two months. Again, Gurusewak Singh, who was DSP B
Railways had picked up his son and brother-in-law. His brother-
in-law was killed and in that case his son had appeared as a
4 witness against the police officials and writ petition had also
..,
been filed against them in the Punjab and Haryana High Court .
..... Due to this, Police Department is inimical towards him and his c
family and had falsely implicated them in the case. The accused
had brought on record certified copy of the judgment passed by
Shri G.S. Dhiman, Additional Sessions Judge, Sangrur on
24.5.2003 and photocopy of the Criminal Contempt Petition
No.13 of 1987 marked 02 and closed the evidence.
D
.., 6. The Trial Court came to hold that the accusations were
established beyond reasonable doubt and, accordingly,
convicted and sentenced the accused.
7. Stand of the accused persons before the High Court
was that there was no evidence to show any conscious E
possession, which is a sine-qua-non for recording conviction
, under Section 15 of the Act. Additionally, it was submitted that
no question regarding possession was put to any of them in
,;..
their examination under Section 313 of the Code of Criminal
Procedure, 1973 (in short, 'the Code'). It was also urged that F
the prosecution was the outcome of personal vandata by some
officials. The High Court accepted the stand of the appellants
and directed acquittal holding that there was no evidence of

.
conscious possession and in any event, the requisite questions
under Section 313 Cr.P.C. were not put. G
.__
8. In support of the appeal, learned counsel for the appellant
submitted that the High Court was wrong in its view both with
regard to the conscious possession aspect as well as the
questioning under Section 313 Cr.P.C.
~ H
/
478 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 9. Learned counsel for the respondents, on the other hand,
submitted that whether there was conscious possession is a
question of fact and the High Court's judgment does not call for
any interference.
10. Whether there was conscious possession had to be
B determined with reference to the factual backdrop in each case.
The fact which can be culled out from the evidence on record is
that the accused persons were sitting atop gunny bags
containing the contraband articles.
11. Section 15 makes possession of contraband articles
C an offence. Section 15 appears in chapter IV of the Act which
relates to offence for possession of such articles. It is submitted
that in order to make the possession illicit, there must be a
conscious possession. Section 15 deals with punishment for
contravention .in relation to poppy straw.
D
12. It is highlighted that unless the possession was coupled I
~
with requisite mental element, i.e. conscious possession and
not mere custody without awareness of the nature of such
possession, Section 15 is not attracted.

E 13. The expression 'possession' is a polymorphous term
which assumes different colours in different contexts. It may carry
different meanings in contextually different backgrounds. It is
impossible, as was observed in Superintendent &
Remembrancer of Legal Affairs, West Bengal v. Anil Kumar
Bhunja and Ors. (AIR 1980 SC 52), to work out a completely
F logical and precise definition of "possession" uriiformally
applicable to all situations in the context of all statutes.
14. The word 'conscious' means awareness about a
particular fact. ltis a state of mind which is deliberate or intended.
G 15. As noted in Gunwantlal v. The State of M.P. (AIR 1972
SC 1756) possession in a. given case need not be physical _.+•
possession but can be constructive, having power and control
over the article in case in question, while the persons whom
physical possession is given holds it subject to that power or
H control. ~
STATE OF PUNJAB V. 479
HARi SINGH & ORS.LRS. [DR. ARIJIT PASAYAT J.]

16. The word 'possession' means the legal right to A
possession (See Health v. Drown (1972) (2) All ER 561 (HL). In
an interesting case it was observed that where a person keeps
his fire arm in his mother's flat which is safer than his own home,
he must be considered to be in possession of the same. (See
Sullivan v. Earl of Caithness (1976 (1) All ER 844 (QBD). 8
17. Once possession is established the person who claims
J
that it was not a conscious possession has to establish it,
"' because how he came to be in possession is within his special
knowledge. Section 35 of the Act gives a statutory recognition
of this position because of presumption available in law. Similar c
is the position in terms of Section 54 where also presumption
is available to be drawn from possession of illicit articles. This
position was highlighted in Madan Lal and Anr. v. State of
Himachal Pradesh (2003 (6) SCALE 483).
D
"'\ 18. In the present case, though, there was evidence
+
regarding conscious possession, but, unfortunately, no question
relating to possession, much less conscious possession was
put to the accused under Section 313 Cr.P.C. The questioning
under Section 313 Cr.P.C. is not an empty formality.
E
19. A few decisions of this Court need to be noticed in this
context.
20. In Bibhuti Bhusan Das GuQta & Anr. v. State of West
,..i...
·Bengal (AIR 1969 SC 381), this Court held that the pleader
cannot represent the accused for the purpose of Section 342 of F
the Code of Criminal Procedure, 1898 (hereinafter referred to
as 'Old Code') which is presently Section 313 Cr.P.C.
21. Section 313 Cr.P.C. reads as follows:
"313. Power to examine the accused.-(1) In every inquiry G
(~ 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
H
480 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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:
B
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).
c (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 questions, or by
D 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
E has committed."

22. The forerunner of the said provision in the Old Code
was Section 342 therein. It was worded thus:

"342. (1) For the purpose of enabling the accused to
F 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
G 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
H giving false answers to them; but the court and the jury (if
STATE OF PUNJAB V. 4~1
HARi SINGH & ORS.LRS. [DR. ARIJIT PASAYAT J.)

any) may draw such inference from such refusal or answers A
J 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 B
has committed.

-I (4) No oath shall be administered to the accused when he
is examined under sub-section (1 )."
23. Dealing with the position as the section remained in c
the original form under the Old Code, a three-Judge Bench of
this Court in Hate Singh Bhagat Singh v. State of Madhya Bharat
(AIR 1953 SC 468) that:
"The statements of the accused recorded by the
D
~ Committing 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."
E
24. Parliament, thereafter, introduced Section 342-A 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.
'*-
25. In Bibhuti Bhusan Das Gupta's case (supra) another F
three-Judge Bench dealing with the combined operation of
Sections 342 and 342-A of the Old Code made the following
observations:
"Under Section 342-A only the accused can give evidence G
in person and his pleader's evidence cannot be treated
(~ as his. The answers of the accused under Section 342 is
intended to be a substitute for the evidence which he can
give as a witness under Section 342-A. The privilege and
the duty of answering questions under Section 342 cannot
H
482 SUPREME COURT REPORTS [2009] 2 S.C.R.

A be delegated to a pleader. No doubt the form of the
summons show that the pleader may answer the charges ~'
against the 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
B 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." :,.
"-
26. The Law Commission in its 41 st Report considered
c the aforesaid decisions and also various other points of view
highlighted by legal men and then made the report after reaching
the conclusion that:
(1) in summons cases where the personal attendance of
the accused has been dispensed with, either under Section
D
205 or under Section 540-A, 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
E personally.
27. The said recommendation has been followed up by
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 )
F 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
G 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 summarised above, come to the conclusion
H
STATE OF PUNJAB V 483
HAR! SINGH & ORS.LRS. [DR. ARIJIT PASAYAT J.]
,. that Section 342 should not be deleted. In our opinion, the A
stage has not yet come for it being removed from the
statute-book. VVith further increase in literacy and with better
facilities for legal aid, it may be possible to take that step
in the future."

28. The position has to be considered in the present set- B
up, particularly after the lapse of more than a quarter of a century
--i· 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 c
twenty-five years. Hence a fresh look can be made now. \/'Je
are mindful of the fact that a two-Judge Bench in Usha K. Pillai
(1993 (3) sec 208) 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 D
.,.
was Section 363 IPC. The two-Judge Bench held thus: (SCC
pp. 212-13, para 4)

"A warrant case is defined as one relating to an offence
punishable with death, imprisonment for life or
E
imprisonment for a term exceeding two years. Since an
offence under Section 363 IPC is punishable with
r 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 F
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."

29. Contextually we cannot bypass the decision of a three-
G
f:{ Judge Bench of this Court in Shivaji Sahabrao Bobade v. State
of Maharashtra (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
H
484 SUPREME COURT REPORTS [2009] 2 S.C.R.

A the accused a question on a vital circumstance appearing against
him in the prosecution evidence. The three-Judge Bench made
the following observations therein: (SCC p. 806, para 16)
"It is trite law, nevertheless fundamental, that the prisoner's
attention should be drawn to every inculpatory material so
B 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 L

has occurred it does not ipso facto vitiate the proceedings
c 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
D 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
E 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." )._

F 30. The above approach shows that some dilution of the
rigour 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
G appellate stage was held to be a sufficient substitute for the
answers given by the accused himself. }- t

31. 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
H
STATE OF PUNJAB V. 485
HARi SINGH & ORS.LRS. [DR ARIJIT PASAYAT J.]

accused personally to explain any circumstances appearing in A
the evidence against him". In Jai Dev v. State of Punjab
(AIR1963 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: B
''The ultimate test in determining whether or not the accused
-f
has been fairly examined under Section 342 would be to
_. inquire 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 c
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."
32. Thus it is well settled that the provision is mainly
D
_., intended to benefit the accused and as its corollary to benefit
the court in reaching the final conclusion.
33. 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 j~stice enshrined in E
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
J. that clause the accused cannot raise any grievance for it. But if
the court fails to put the needed question under clause (b) of the F
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.
G
t +. 34. 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 H
486 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 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
' ) .
:t

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
I
B
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 ~ t
reaching finality, or without registering further progress of their
c 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?
35. The one category of offences which is specifically
r ·,

exempted from the rigour of Section 313(1)(b) of the Code is [
D "summons cases". It must be remembered that every case in ;...
which the offence triable is punishable with imprisonment for a .,,. ~

7
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
E 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 A

F helping hand to an accused who is placed in a predicament
deserving such a help? r
36. Section 243(1) of the Code enables the accused, who
1
is involved in the trial of warrant case instituted on police report , r
to put in any written statement. When any such statement is filed
G 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 Session
can also exercise such a right to put in written statements r
'
H (Section 233(2) of the Code). It is common knowledge that most •

J.,
STATE OF PUNJAB V. 487
HARi SINGH & ORS.LRS. [DR. ARIJIT PASAYAT J.]

of such written statements, if not all, are prepared by the counsel A
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. B
37. 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 c
prejudice and disadvantage the court should, in appropriate
cases, e.g., if the accused satisfies the cciurt 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 D
.... 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 could this be achieved?
38. If the accused (who is already exempted from personally
appearing in the court) makes an application to the court praying E
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: F

(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 G

. " 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.
H
488 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 39. If the ~ourt 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
B 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 ...

c free. to indicate that fact at the appropriate place in the
questionnaire (eiS a matter of precaution the court may keep
photocopy or carbon copy of the questionnaire before it is
supplied to the accused for an answer). 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
D
right to seek personal exemption from court during such ...
questioning. The Court has also to ensure that the imaginative * 'i
response of the counsel is intended to be availed to be a
substitute for taking statement of accused.

E· 40. 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.
41. The above position was indicated in Basav Raj R Patil
v. State of Karnataka (2000 (8) SCC 740). A
F
42. It is true that in Chandu Lal Chandraker's case (supra)
two Hon'ble Judges have taken a view supporting that of the
appellant. It appears that in said case no.reference was made
to Bibhuti Bhusan Das Gu12ta's case (supra).
G 43. Judged in the background of p~inciples set out in Basav
Raj R. Patil's case (supra) the inevitable conclusion is that the
High Court's impugned order does not suffer from any infirmity
.l •
to warrant interference.
44. When the accused was examined under Section 313
H
STATE OF PUNJAB V. 489
HARi SINGH & ORS.LRS. [DR. ARIJIT PASAYAT J.)

Cr.P.C., the essence of accusation was not brought to his notice, A
more particularly, that possession aspect, as was observed by
this Court in Avtar Sing ha and Ors. v. State of Punjab (2002 (7)
SCC 419). The effect of such omission vitally affects the
prosecution case.
45. Above being the position, we find no merit in this appeal B
which is, accordingly, dismissed. However, certain directions
given by the High Court for initiation of action against some
officials could not have been given while dealing with an appeal
and, therefore, stand expunged. The appeal is dismissed except
for a direction for expulsion of the direction for initiation of C
departmental action.

R.P. Appeal dismissed.