LexBASAVARAJ R. PATIL AND ORS. versus STATE OF KARNATAKA AND ORS.
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A BASAVARAJ R. PATIL AND ORS. v. STATE OF KARNATAKA AND ORS. OCTOBER 11, 2000 B [K.T. THOMAS, R.P. SETHI AND S.N. VARIAVA, JJ.] Criminal Law-Criminal Procedure Code, 1973-Section 313(2)- Questioning of the accused in a warrant case-After closing of evidence by C prosecution-Held (per Majority), can be dispensed with on request by accused-Principles laid down for such exemption. · Respondent lodged a complaint with the police alleging, inter alia, that the Appellants who are her husband; his sister and their parents had ill-treated her for not bringing more dowry; and that she was pestered with persistent D 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. At the stage for examination of the E accused under Section 313 of the Code the trial court dispensed with the presence of accused Al and A4 and posted the case for argument. The trial magistrate finally passed a judgment acquitting all the accused of the offences charged. The Respondent filed a revision before the High Court challenging the aforesaid order of the acquittal. Single Judge of the High Court found F that as per the decision of this Court in Usha K. Pillai, [1993) 3 SCR 467, trial court has no other alternative and h~s no discretion to dispense with the examination of the accused personally under Section 313 of the Code. Hence the 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. G The appellants contended 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, and that his counsel may be allowed to answer H 658 - - BASA VARAJ R. PATIL v. ST ATE OF KARNAT AKA 659 such questions on his behalf. A Disposing of the Appeal, the Court HELD : (Per Thomas, J. for himself and Variava, J.) 1. The word "shall" in clause (b) to Section 313(1) Cr.P.C. is to be B 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 C hardship and at the same time adopt a measure to comply with the requirements in Section 313 of the Code in a substantial manner. (669-H; 670-A) Hate Singh Bhagat Singh v. State of Madhya Bharat, AIR (1953) SC 468; Bibhuti Bhusan Das Gupta and Anr. v. State of West Bengal, (1969) 2 SCR 104; Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra and D Anr., (1973) 2 SCC 793 and Jai Dev v. State of Punjab, AIR (1963) SC 612, referred to. 2. 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 E 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 F 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 G
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