Holding

In a warrant case, the accused must be personally examined under Section 313(1)(b) of the CrPC; examination of the advocate is not permissible.

Summary

The appellant, Usha Pillai, was appointed guardian of her granddaughter Nivedita after the child's mother committed suicide. The child's father, R.K. Srinivas, abducted the child and took her to the United States, leading the appellant to file a kidnapping complaint. During the criminal trial, the father obtained exemption from personal attendance, and his advocate was examined under Section 313 of the CrPC in his place, a decision the magistrate upheld. The appellant challenged this, arguing that personal examination of the accused is mandatory in a warrant case. The Supreme Court held that, because kidnapping under Section 363 IPC is a warrant offence, the accused must be personally examined under Section 313(1)(b) and an advocate’s examination does not satisfy the statutory requirement, setting aside the magistrate’s order and directing a proper examination of the accused.

Issues considered

Whether a trial magistrate may dispense with personal attendance of the accused and examine the accused's advocate in his place under Section 313(1)(b) of the Criminal Procedure Code in a warrant case.
Whether the proviso to Section 313(1) allowing exemption applies to warrant cases.

Legislation cited

Code of Criminal Procedure, 1973s. 205(1), s. 313(1)(a), s. 313(1)(b), s. 317
Guardians and Wards Act, 1890
Indian Penal Code, 1860s. 363

Subjects

Section 313 CrPCpersonal examination of accusedwarrant casekidnappingguardian of minordue processexemption from personal attendance

Judgment

' ··• USHA K. PILLAI A

v.

RAJ. K. SRINIVAS AND ORS. ETC.

APRIL 30, 1993
B
[A.M. AHMADI ANDS. MOHANJ.J.)

Section 313 (J) Cr. P. C.-Scope of-Whether the trial Magistrate is legally
right in examining the Advocate of the (lccused in his place in a warrant case.

- - The daughter of the appellant was married to the respondent and a gfrt
child was born out of the wed-lock. The couple went to the U.S.A. alongwith
the child, butthe 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. -
c

Meanwhile the first respondent married an American girl and em- D
braced christianity. Thereupon the appellant applied to the local court for
a pp-Ointment as guardian of the child~ The respondent appeared in court but
tOok the child to U.S.A. forcibly, and eritrusted her to the custody of his newly
wedded wife.

E
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 proceed-
ings in criminal court. The permission was granted subject to the condition
that he will appear whenever called upon to do so.
F
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 appear-
ance of the resp'ondent for being examined under Seection 313 Cr. P.C. The
Magistrate dismisSed the application of the appellant.
G
This Court examined the provision of Sub Section (1) of Section 313 _Cr.
P.C.and,

HELD: Introduced in its pres~nt form pursuant to the recommenda-
tions made in the 41st Report of the Law Commission, sub section (1) of H
467
468 SUPREME COURT REPORTS (1993] 3 S.C.R.

A 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 two da~
(a) & (b). aause (a) uses the expression 'may• to indicate that the matter is left
to the discretion of the court to put questions to the accused at any stage of the

8
inquiry or trial, whereas dause (b) uses the expression "shall" to convey dlat
it is mandatory for the court to examine the accused after the witnes.ws 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 accused under daase (b) in a
C summons case if the court has already dispensed with this personal attandence
if the court on completion of the prosection evidence finds that there are
cettain circumstances appearing in the evidence against the accused, the
court is obliged by dause (b) to question the accused before he is caUeci upon
to enter his defence. (472-D)

D Section 313 (1) applies to all inquiries and trials under the code, to gl~e
the accused an opportunity to explain the circumstances appearing against
him. The trial court is empowered by dause (a) to question the accused atany
stage ofinquiry or trial, whUe dause (b) obligates it to question the accused
before he enters his defence.The rule of audi allerom parle1r1 incorporated
t: therein is intended for the benefit of the accused. (472-F) ·

The proviso is in the nature of an exception to dause (b) of sub sectlon
(l)ofSection313Cr.P.C.andappliestoasommonscase. Wheretbepenoaal
presence of the accused has been dispensed with, the magistrate can dispense
-
with the mandatory requirement of dause(b). (472-G)
F
Since the offence under section 363 IPC ls punbbable with bDprlson-
ment for a term exceeding two years it is a warrant case, so even if the court
has dispensed with the personal attendance of the accused, the examination
of the accused uls 313 Cr. P.C. is mandatory. The examination oh lawyer
G would not be sufficient complaince with the mandate of the said provision.
(473·8)

Bibhuli Bhushan Das Gupta & Anr. v. Stale of West Bengal, A.I.R. (1969)
S.C. 381• (1969) 2 SCR 104, referred to.

H
USHA PILLAI v. R.K. SRINIVAS [t\HMADl,J] 469

In that case this court pointed out that the privilege of making a 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)
B
This court set aside the impugned order and dircted 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)

CRIMINAL APPELLATE JURISDICTION: Criminat Appeal No. 398 of
1993. c
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 D
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.
E
D.P. Gupta, Solicitor General and Ms. A. su6hashni for the Respondents.

- The Judgment of the Court was delivered by

AHMADI, J. Special leave granted. F

The brief facts leading to this appeal are that the appellant':; daughterGeetha
married respondent No. l (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
G
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 t~e apppellant 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 H
~· :-,~;, ':_,..---;-- -~ '\\
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• •\ ~: ' - /·.' _,.-

'; 470, '. '.· ' ~;~SUPREMECOURTREroRTS ': /
[19931 3 S.C.R.
'--< \ \\ <-.: \ ·.
' , :'A 'fudia. presumbly 'b~~ause
' ~ .'
her husband had developed inti;;:;,.cy wiiha;;"°American
. - ··- ' . . ' ; ' . .. -
girl and had staned to ill-treat her. Within a week after her arrival in India she.
comiiiitted suicide by setting herself on fire. Nivedita continued to rem:lin in the
care and custody of the appellant The firSt resp011dent mamed lhe Amerlcan girl.
with whom he had. develojied intimacy. s0metilJ1e in year 1983-84 and uie
embraced Christianity. Thereupon the appellant filed an application in the Court
n of the Chi~f judge. City Civil 'court. Hyderabad. being O.P. No: 203 of I 984. for
appointing her as the guaidianof the person ofihe minor child umlerihe provisions
of Guardians iini1 Wards Act I 890. Respondent No'. i 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
c duplicate passport for Nivedita and thereafter with the help of his associates picked
up Nivedita from her school ignoring the protests of the Head Mistress of the
. School. The Head Mistress immediately filed a complaint with the commissioner
of police and informed the appellant about the same who in tum lodged a Rrst
Information Report in that behalf. On enquiry the appCllant's son traced respon-
dent No.I and his three companions (who had assisted him in procuring the child)
D at the Madras Airport. Despite his entreaties. respondent No. I forcibly took the
child to U.S:A via Singap0re. Since then Nivedita i; in L~e custody of respondent
No. I and his newly married wife Maureen. After thus removing the child from the
lawful custody of the appellant. resp0ndent No. l's Advocate withdrew from the
guardianship proceedings. The Court. however. app0inted L~e appellant as the
guardian of the person of Nivedita. The appellant also filed a complaint alleging
E
kidnapping against respondent No. I and his three companions who had aided and
abetted him in the Coon 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.and the accused persons were duly served. The respor.Jents thereafter
moved an application under Section 482 of the Code of Criminal Procedure. 1973
F (hereinafter called 'the Code') for quashing the process on the pleatbat in law a
father is entitled to his daughter's custody and hence cannot be liable under section
. '
363. IPC. Jn that application the High Court direct"!! that the child be produced
before it However. the child was not jiroduced before the Court and tbe Court
ultimately dismissed the application against which a Special Leave Petition was
filed in this Coon. This Coon also rejected the Special Leave Petition. On tbe other
G hand while lte application under Section 482 of the Code was pending in the High
Court. the father of respondent No. I filed an application for rescinding the order.
appointing 'he appellant as the guardian of the person ofNivedita. In the meantime. _
the SupeticrCoun in New Jersey, U.S.A., was moved whichcounpassedanorder
pennltti~!!. nspondent No. I to retain the custody of the child on the ground that
H the Indian Coum had violated the due process clause. The Chief Judge.City Civil
Court. Hyderabad. ultimately dismissed the father's application for rescinding the

•
USHA PILLAI v. R.K. SRINIV AS [AHMADI,]) 471

earlier order by which the appellant was appointed the guardian of the person of A
the child. As staed earlier the Superior Court, New Jersey, having permitted
respondent No. I 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. I and his associates, respondent No. I applied for B
exemption from personal attendance which was granted on condition that he will
appear whenever called upon to do so by the court. Respondent No.I was '.hus
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. I and
the. other respondents and on completion of the evidence respondent No. l's
c
Advocate sought permission to be examined in place of respondent No. I-under
section 313 of the Code. This permission was granted and he was ex~mined under
section 313 of the Code. On completion of the examination the apPCllant not being
satisfied with some of the replies given by the Advocate fiied an application
praying that respondent No. I should be directed to personally appear in Court and D
be examined under secion 313 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
l>n 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
respond_ent No. I himself under section 313 of the Code? E

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

"Power to examine the accused· (I) In every inquiry or
trial, for ~he purpose of enabling the accused personally F
. 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; G

(b) shall, after the witnesses for the prosecution have been
examined and before he is callled on for his defence,
question him generally on the case:
.H
SUPREME COURT REPORTS (1993) 3 S.C.R.
472

A Provided that in a summons case, where the
Court has dispensed with the personal attendance of
the accused, it may also dispense with pis examina-
tion under cJause (b)."
This sub-section was introduced in its present form pursuant to the recommenda-
B tions made in the 4lst 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
twol clauses (a) & (l:l). Clause (a) uses the expression 'may' to indicate that the
m~tter is left to the discretion of the Court to put questions to the ai::cused at any
stage of the inquiry or trial whereas clause (b) uses the expression 'shall' to convey
C 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 ~_pmyi$JQn which came to be added to sub-section (1) with a view to
-----enabling the Court~se with the examination of the accused under clause
(b) in a summons case if the""Court has already dispensed with his personal
D 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
ancl 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
E 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 circull)Stance
F 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 sub-
section (1) of section 313 of the Code. It applies to a summons-case; it states in no
G 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 ma~5fatory requirement of clause (b) only in a summons~case i.e. a case other
H than a warrant-case This is clear on plain reading of the definitions of a summons-
USHA PILLAI v. R.K. SRINIVAS [AHMADI,]) 473

case in Section 2(w)and a~ant-case in section2'(x)oftheCode. A warrant case A
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 su~ons-case. Therefore, even in cases where the
court has dispensed with the personal attendance of the accused under section
205( l) or section 317 of the Code, the court cannot dispense with the examination B
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 csse. It would thus
appear that the mandate of section 313 ( l) (b) demands that the accused persop,
if not a company or other juridical person, must be personally examined to explain
the incriminating circumstances appearing against him in the prosecution evi-
c
dence and t!1e exmnination of his lawyer would not be sufficient compliance with
the mandate of said provision.

A similar question arose for consideration in Bibhttti Bhttshan Das Gupta &
Anr. v. State of West Bengal[AIR (1969) SC. 381=[1969]2 SCR 104] underthe D
provisions of the old Code. In that case this Court noticed that the accused was not
personally examined under section 342 of lhe Code. It was submitted that the trial
was vitiated as the accused was not perso~nally 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 E
do all acts which the accused could personally do. Dealing_~ilh 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 lhe accused does not extend to the pleader answering questions under
F
section 342 in place of the accused person. The submission that such a view will
ca_u~ inconvenience and hara.ssmem to Ule accused was also repelled in the
following words:

"We are not impressed with the argument that an accused person
will suffer inconvenience and hru;assment if the Court cannot G
dispense with his attendance for purp0ses of section 342. The
examination under the section becomes necessary when at the close

- of .the prosecution evidence _the magistrate finds that ~here are
incriminatiQg circumstances requiring an explanation by the ac-
cused."
H
474 SUPREME COURT REPORTS [19931 3 s.c.k.

A 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 comp~y or other juridical person it cannot be exam-
ined personally. ff may be that the Court may then examine a
B
director or some other agent on its behalf."

It is another' matter that in that case this Court did not interfere with the convi!=!ion
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
c 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
rea:;on that the accused may raise the plea of violation of the due process clause
D ifthe order is sought to be executed in the foreign court. We, therefore, set aside
1he 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
31'.3(1) (b) of the Code. As tile prosecu~ion is pending since long, the learned
Magistrate will take it up inunediately.

SPS. Appeal disposed of.

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