USHA K. PILLAI versus RAJ. K. SRINIVAS AND ORS.

Citation: [1993] 3 S.C.R. 467 · Decided: 30-04-1993 · Supreme Court of India · Bench: A.M. AHMADI · Disposal: Disposed off

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

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USHA K. PILLAI 
v. 
RAJ. K. SRINIVAS AND ORS. ETC. 
APRIL 30, 1993 
[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. -
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B 
c 
Meanwhile the first respondent married an American girl and em-
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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. 
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. 
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. 
This Court examined the provision of Sub Section (1) of Section 313 _Cr. 
P.C.and, 
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F 
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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 
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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 
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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) 
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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) 
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 
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would not be sufficient complaince with the mandate of the said provision. 
(473·8) 
H 
Bibhuli Bhushan Das Gupta & Anr. v. Stale of West Bengal, A.I.R. (1969) 
S.C. 381• (1969) 2 SCR 104, referred to. 
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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 repres

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