Holding

Section 313(1)(b) CrPC is mandatory but may be dispensed with in warrant cases upon a satisfactory application and affidavit showing genuine hardship, allowing the accused to answer via a questionnaire.

Summary

The appellants were charged under the Dowry Prohibition Act and Section 498‑A IPC for dowry harassment. After the prosecution evidence was closed, the trial court dispensed with personal examination of two accused under Section 313 CrPC and acquitted them. The High Court set aside the acquittal, directing personal examination of the accused, relying on Usha K. Pillai. The Supreme Court held that while Section 313(1)(b) is generally mandatory, a court may dispense with the accused’s personal presence in warrant cases if the accused makes a satisfactory application supported by an affidavit showing hardship, and the court may use a questionnaire answered by the accused. The dissent argued that the provision is mandatory except in summons cases. The majority allowed the trial court to consider such applications, thereby dismissing the appeal.

Issues considered

Whether Section 313(1)(b) CrPC obliges personal examination of the accused in warrant cases.
Whether the accused’s counsel may answer the Section 313 questions on his behalf.
Whether the High Court was correct in setting aside the acquittal and remanding for personal examination.
Whether non‑examination can be challenged by the prosecution or complainant.

Legislation cited

Subjects

Section 313Criminal Procedure Codepersonal examinationwarrant casedowry prohibitionSection 498-Aexemptionquestionnaireaffidavitnatural justiceaudi alteram partem

Judgment

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

E
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
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

- questions which the court might put to him under Section 313 of the Code)
and fix the time within which 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 free to indicate that fact at the H
660 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.
"'..
~

A appropriate place in the questionnaire (as a matter of precaution the Court
may keep photocopy or carbon copy of the questionnaire before it is supplied
...
to the accused for answers). 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 right to seek personal exemption from court during
such questioning. (670-B-F)
B
3. The trial court can pass appropriate orders if an application is made
by the accused relating to the examination under Section 313 of the Code, in
the light of the legal principles stated in the Judgment. (670-H)
".
HELD : (Per Sethi, J. - dissenting) :
c
1. The object of Section 313 would be defeated if, instead of the accused,
~
his lawyer replies the question with his invented ingenuity. The imaginative
suggestions of the counsel cannot be a substitute for the taking of the
statement from the accused. The Section enables a judge to ascertain from
time to time, from the accused as to what explanation he may desire to offer
D
regarding any fact stated by a witness against him. It has to be noticed that
non-compliance of the provisions of the Section is not a mere irregularity.
Omission to put questions to the accused on specific points vitiates the trial.
Omission to put specific points appearing against the accused apparently
occasions prejudice to him which cannot be rectified under Section 465 of
E the Code of Criminal Procedure. It is true that all omissions on some points
to be put to the accused under Section 313 would not vitiate the trial but the
failure to put vital points and circumstances is sure to occasion a miscarriage
of justice and thus vitiate the trial to that extent. (673-C-D)

Ajmer Singh v. State of Punjab, (1953) SCR 418; Usha K. Pillai, (1993)
F 3 SCR 467; Hate Singh Bhagat Singh v. State ofMadhya Bharat, AIR (1953)
SC 468; Bibhuti Bhusan Das Gupta and Anr. v. State of West Bengal, (1969)
2 SCR104; Rama Shankar Singh and Ors. v. State of West Bengal, AIR (1962)
SC 1239 and State ofMaharashtra v. Lakshman Jairam, AIR (1962) SC 1204,
referred to.
G 2. Where the legislature's intention is clear, there is no scope of reading
between the lines or putting an interpretation contrary to the intention of the
legislature. Adding to or providing for ancillary measures can be resorted to
by the Courts only in grey areas and not in the covered fields. If on its true
-r

construction statute leads to anomalous results, courts have no option but to
H give effect to it and leave it to the legislature to amend or alter the law. Any ...
·-
BASAVARAJ R. PATIL v. STATEOFKARNATAKA 661
other view, even based on howsoever high, cherished or pious desire cannot A
be the substitute of specific legislative indictment. Section 313 of the Criminal
Procedure Code does not envisage the examination of the counsel, in place of
the accused and the law laid down by this court by three Judge Bench in 1969
and later on followed in 1973, does not require any reconsideration,
particularly by a Bench of the same strength and of a coordinate jurisdiction. B
(681-E; 683-A]

Anandji Haridas and Co. v. Engg. Mazdoor Sangh, [1975) 3 SCC 862;
C.S. T. v. Parson Tools and Plants, (1975] 4 SCC 22; S. Harnam Singh v.
Shivrani, [1981] 2 SCC 535 and Bank ofIndiav. Vijay Transport, (1988) Supp.
1sec47, referred to.
c
3. Though the High Court took a view which is in conformity with the
law laid down by this Court yet it ignored the basic concept and object of
Section 313, admittedly enacted for the benefit of the accused affording him
the opportunity to explain the circumstances appearing in the evidence against
him. The mandate of Section 313 is imperative with no exception. However, D
the violation of its compliance can be objected to only by the accused for whose
benefit the Section has been enacted. The complainant or the prosecution
cannot be permitted to allow the illegality being committed and perpetuated
and after the enquiry or trial results in acquittal of the accused, to complain
on the basis of the alleged violation. There is no allegation nor could there be
any that the personal non-examination of the accused persons had, in any way, E
adversely affected the prosecution. Section 465 of the Code could not be relied
upon by the prosecution for the purposes of assailing the judgment of acquittal
after the completion of the trial. Despite laying down the correct position of
law the High Court appears to be not justified in setting side the order of
acquittal at the instance of the informant of the crime. In the absence of any F
complaint by the accused for their non-examination under Section 313 of the
Code, there was no justification to remand the case only for the purposes of
examining the concerned accused personally and to pass fresh orders on
merits in accordance with law. [683-H; 684-A-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Ap!'eal No. 869 G
of2000.

From the Judgment and Order dated 19 .11. 98 of the Karnataka High
Court in Crl. R.P. No. 310of1996.

Shankar Divate and Naresh Kaushik for the Appellants. H
662 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A A. Subba Rao, A. T. Rao and Ravi Shankar Kumar for the Respondent
No.2.

Sanjay R. Hegde and Satya Mitra for Respondent No. l.
...
The Judgments of the Court were delivered by
B
THOMAS, J. Leave granted. When a criminal court completes
prosecution evidence (other than in summons cases) is it indispensably
mandatory that the accused himself should be questioned? Can not the court
allow the advocate to answer such questions on behalf of the accused at least
in some exigent conditions? A two Judge Bench of this Court has held in
C Usha K. Pillai v. Raj K. Srinivas & Ors., (1993] 3 SCR 467 that there is no
alternative to it permissible under law. When such an issue arose in this case
before this Court, a Bench of two Judges made a reference to a larger Bench
for reconsideration of the legal position stated in Usha K. Pillai (supra).

D The aforesaid question arose in this case from the following factual
background: First appellant - a software engineer (now stationed in USA) is
the husband of second respondent Ms. Arundathi. Their marriage was
solemnised in November 1992 and a female child was born to them. But
eventually their connubial life passed through bad weather and the situation
reached a stage when Arundathi moved a Judicial Magistrate of First Class
E for maintenance allowance from her husband. An order in her favour was
passed by the said magistrate under Section 125 of the Code of Criminal
,,.I
Procedure (for short "the Code").
'
On 10.3.1993, Arundathi lodged a complaint with the police alleging,
inter a/ia, that her husband and his sister (Kumari Jaya - second appellant)
F and their parents had ill-treated Arundathi for not bringing more dowry; and
that she was pestered with persistent 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
G 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.

Prosecution examined five witnesses
•
and closed the evidence.
'1i
When
the next stage for examination of the accused under Section 313 of the Code
H reached the trial court passed the following proceedings:
BASAVARAJ R. PATIL v. STATE OF KARNATAKA [THOMAS, J.] 663

"Evidence closed and statement under Sec/313 Cr.P.C. was kept ready A
to give opportunity to the accused as prescribed under Sec.313 Cr.P.C.
Statement of A-2 father recorded who denied every circumstance, but
did not add any further statement. The counsel for the accused filed
application for dispensing with the questioning of A-1 & A-4. As
A-1 is in America and A-4 is a student studying in Gadag, the counsel B
has endorsed on their statement that A-1 and A-4 have nothing to say
by way of their statements. Considering the reality, A-1 has to come
from America the case will unnecessarily be delayed. Hence, on the
said endorsement the counsel for the accused was given the
opportunity to make statement for A-1 and A-4 and their physical
presence is dispensed with. The case is posted for argument." C
The trial magistrate thereafter proceeded to hear the arguments and
finally passed a judgment acquitting all the accused of the offences charged.
Arundathi then filed a revision before the High Court challenging the aforesaid
order of the acquittal. A Single Judge of the High Court heard the revision
and learned Judge found that as per the decision ·of this Court in Usha K. D
Pillai, [1993] 3 SCR 467, trial court has no other alternative and has no
discretion to dispense with the examination of the accused personally under
Section 313 of the Code. Hence the learned 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 E
Section 313 of the Code.

The father of the appellants passed away in the meanwhile. Hence this
appeal was filed by the remaining accused who are the husband and sister-
in-law of Arundathi. One of the contentions raised by the appellants is that
if the court did not put questions under Section 313 of the Code there is no F
reason for the complainant to be aggrieved thereof because the prejudice can
be caused only to the accused due to non-compliance with the said provision.
Next contention is more important and that was pressed into service here, 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 G
journey solely for the purpose of answering the court questions he himself
pleaded that his counsel may be allowed to answer such questions on his
behalf.

We are not inclined to deal with the first contention in this case
because the High Court interfered with the order in exercise of its revisional H
664 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A jurisdiction. Such jurisdiction can be invoked even suo motu and therefore it
is immaterial whether the power of the High Court was exercised on a motion
made by the complainant. Now, for dealing with the second contention we
may extract Section 313 of the Code:
"313. Power to examine the accused- (l) In every inquiry or trial, for
B 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
c and before he is called on for his defence, question him generally on
the case:

Provided that in a summons-case, where the Court has dispensed
with the personal attendance of the accused, it may dispense with his
examination under clause (b ).
D
(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 question, or by giving false answers to them.
E
(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 has committed."

F The forerunner of the said provision in the Code of Criminal Procedure
1898 (for short "the old Code") was Section 342 therein. It was worded thus:
"342. (I) For the purpose of enabling the accused to 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,
G
and shall, for the purpose aforesaid, question him generally on 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 giving false answers to
H
BASAVARAJ R. PATIL v. STATE OF KARNATAKA [THOMAS, J.] 665

them; but the Court and the jury (if any) may draw such inference from A
such refusal or answers 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 has committed. B
(4) No oath shall be administered to the accused when he is examined
under sub- section (I)."

Dealing with the position as the Section remained in the original form
under the old Code, a three Judge Bench of this Court (Fazal Ali, Mahajan C
and Bose, JJ) interpreted the section in Hate Singh Bhagat Singh v. State of
Madhya Bharat, AIR (1953) SC 468 that "the statements of the accused
recorded by committal 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." D
Parliament, thereafter, introduced Section 342A 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.
In Bibhuti Bhusan Das Gupta & anr. v. State of West Bengal, [1969] 2
SCR 104, another three Judge Bench (Sikri, Bachawat and Hegde, JJ), dealing E
with the combined operation of Section 342 and 342A of the old Code made
the following observations:

"Under Section 342A only the accused can give evidence in person
and his pleader's evidence cannot be treated as his. The answers of
the accused under s.342 is intended to be a substitute for the evidence F
which he can give as a witness under sec . .342A . The privilege and
the duty of answering questions under sec. 342 can not 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 G
pleader may be permitted to represent the accused while 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."

The Law Commission in its 41 st Report considered the aforesaid decisions H
666 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A and also various other points of view highlighted by legal men and then made
the report after reaching the conclusion that-

(i) in summons cases where the personal attendance of the accused
has been dispensed with, either under section 205 or under
section 540A, the court should have a power to dispense with
B his examination; and
(it) In other cases, even where his personal attendance has been
dispensed with, the accused should be examined personally.

The said recommendation has been followed up b'y the Parliament and
C 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 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,
D particularly when there is improvement in 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
summarized above, come to the conclusion that section 342 should
E not be deleted. In our opinion, the stage has not yet come for its
being removed from the statute book. With further increase in literacy
and with better facilities for legal aid, it may be possible to take that
step in the future."

F The position has t? be co_nsidered in the present set up, p~rticularly
after the lapse of more than a quarter of a century 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
twenty-five years. Hence a fresh look can be made now. We are mindful of
G the fact that a two Judge Bench in Usha K. Pillai (supra) 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
was Section 363 of the IPC. The two Judge Bench held thus:

"A warrant case is defined as one relating to an offence punishable
H with death, imprisonment for life or imprisonment for a term exceeding
BASAVARAJ R. PATIL v. STATE OF KARNATAKA [THOMAS, J.] 667

two years. Since an offence under section 363 IPC is punishable with A
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( l) or section 317 of the Code, the court cannot dispense with the
examination of the accused under clause (b) of section 313 of the B
Code because such examination is· mandatory."

Contextually we cannot bypass the decision of a three Judge Bench of
this Court in Shivaji Sahabrao Bobade & anr. v. State of Maharashtra &
Anr., [1973] 2 SCC 793 as the Bench has widened the sweep of the provision
concerning examination of the accused after closing prosecution evidence. C
Learned Judges in that case were considering the fallout of omission to put
to the accused a question on a vi~l circumstance appearing against him in
the prosecution evidence. The three Judge Bench made the following
observations therein:

"It is trite law, nevertheless fundamental, that the prisoner's attention D
should be drawn to every inculpatory material so 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 has occurred it does not ipso facto vitiate the proceedings
and prejudice occasioned by such defect must be established by the E
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 for the accused to show what explanation the accused has
as regards the circumstances established against him but not put to F
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 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." G

The above approach shows that some dilution of the rigor 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 appellate stage was held to be a sufficient substitute for the answers H
668 SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R.

A given by the accused himself.
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 accused personally to explain any
circumstances appearing in the evidence against him." In Jai Dev v. State of
B Punjab, AIR (1963) 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:

"The ultimate test in determining whether or not the accused has been
fairly examined under section 342 would be to enquire whether, having
c 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 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."
D Thus it is well settled that the provision is mainly intended to benefit
the accused and as its corollary to benefit the court in reaching the final
conclusion.

At the same time it should be borne in mind that the provision is not
E intended to nail him to any position, but to comply with the most salutary
principle of natural justice enshrined in the maxim "audi alteram partem". The
word "may" in clause (a) of sub-section (I) in Section 313 of the Code
indicates, without any doubt, that even if the court does not put any question
under that clause the accused cannot raise any grievance of it. But if the court
1
F fails to put the needed question under clause (b) of the 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 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 that this is the requirement and would be the general rule. However,
if remaining present involves undue hardship and large expense, could the
H Court not alleviate the difficulties. If the court holds the view that the situation
BASAVARAJ R. PATIL v. STATE OF KARNATAKA [THOMAS, J.] 669

.... in which he made such a plea is genuine, should the court say that he has A
no escape but he must undergo all the tribulations and hardships and answer
such 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 reaching finality,
or without registering further progress of their trial until their co-accused is
able to attend the court personally and answer the court questions? Why B
should a criminal court be rendered helpless in such a situation?

-
The one category of offences which is specifically exempted from the
rigour of Section 313( 1)(b) of the Code is "Summons cases." It must be
remembered that every case in which the offence triable is punishable with c
imprisonment for a 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 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 D
in cases involving less serious offences, can not the court extend a helping
hand to an accused who is placed in a predicament deserving such a help?

Section 243(1) of the Code enables the accused, who is involved in the
trial of warrant case instituted on police report, to put in any written statement.
E
When any such statement is filed 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 sessions can also exercise such
a right to put in written statements [Section 233(2) of the Code]. It is common
knowledge that most of such written statements, if not all, are prepared by F
the counsel 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.
G
We think that a pragmatic and humanistic approach is warranted in
rtllJ regard to such special exigencies. The word "shall" in clause (b) to Section
313( I) 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 prejudice and disadvantage the Court should, in appropriate
.......... cases, e.g., if the accused satisfies the court that he is unable to reach the ~
670 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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 Section 313 of the Code in a substantial
manner. How this could be achieved?

B 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
to answer the questions without making his physical presence in court on
account of justifying exigency the court can pass appropriate orders thereon,

C
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 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.
D
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 questions which the
court might put to him under Section 313 of the Code) and fix the time within
which !he same has to be returned duly answered by the .accused together
E 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 .J

questions he is free to indicate that fact at the appropriate place in the
questionnaire [as a matter of precaution- the Court may keep photocopy or
F carbon copy of the questionnaire before it is supplied to the accused for
answers]. 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 right to seek personal exemption from court during such questioning.

In our opinion, if the above course is adopted in exceptional exigency
G it would not violate the legislative intent envisaged in Section 313 of the
Code.

In the present case the trial court can pass appropriate orders if an
application is made by the accused relating to the examination under Section
313 of the Code, in tqe light of the legal principles stated above. This criminal
H appeal is disposed of accordingly.
BASAVARAJ R. PATILv. STATE OF KARNATAKA [SETHI, J.] 671

- SETHI, J. I have perused the judgment of Brother Thomas, J. in depth
but regret my inability to agree with it.
A

Section 313 of the Code of Criminal Procedure, 1973 corresponds to
Section 342 of the Old Code. The Section casts a duty upon the court to
question the accused after the witnesses of the prosecution have been
examined and before he is called upon for his evidence. Exception is , however,
B
made in a summons case where the personal appearance of the accused has
been dispensed with by the Court. The object of the Section is "for the
pwrposes of enabling the accused to explain any circumstances appearing in
the evidence against him."
c
The Section is based upon the maxim of audi alteram partem which has
been acknowledged as the cardinal principle of natural justice. It is a principle
of English Law that the whole burden of proving the evidence is on the
prosecution which means the accused can stand-by and do nothing as he is
protected from all judicial questioning at the trial. The present section makes
a departure from the English Law and allows the court to put questions to D
the accused and "the answers given by him 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 has committed". Examination under the Section is not intended to
be an idle formality. It has to be carried out in the interests of justice and fair E
play to the accused. In Ajmer Singh v. State of Punjab, [ 1953] SCR 418 this
Court observed that it was not a sufficient compliance with the Section, to
generally ask ~he accused that, "having heard the prosecution evidence what
he was to say about it". The accused must be questioned separately about
each material circumstance which is intended to be used against him. The
whole object of the section is to afford the accused a fair and proper opportunity F
of explaining circumstances which appear against him and the questions put
to him must be fair and be couched in a form which even an ignorant or
illiterate person may be able to appreciate and understand. Elaborating the
scope of Section 342 of the Old Code this Court in Rama Shankar Singh and
Ors. v. State of West Bengal, AIR (1962) SC 1239 held: G
") "Section 342 of the Code of Criminal Procedure by the first sub-
section provides, in so far as it is material; "For the purpose of
enabling the accused to explain any circumstances appearing in the
evidence against him, the Court...... shall ....... question him generally on
--~
the case after the witnesses for the prosecution have been examined H
672 SUPREME COURT REPORTS [2000] SUPP. 3 S.C:R.

A and before he is called on for his defence." Duty is thereby imposed ....
upon the Court to question the accused generally in a cases after the
witnesses for the prosecution have been examined to enable the
. accused to explain any circumstance appearing against him. This is a
necessary corollary of the presumption of innocence on which our
criminal jurisprudence is founded. The object of the section is to
B afford to the accused an opportunity of showing that the circumstances
relied upon by the prosecution which may be primafacie against him,
is not true or is consistent with his innocence. The opportunity must
be real and adequate. Questions must be so framed as to give the.
accused clear notice of the circumstances relied upon by the
c prosecution, and must give him an opportunity to render such
explanation as he can of that circumstance. Each question must be so
framed that the accused may be able to understand it' and to appreciate
what use the prosecution desires to make of the evidence against him.
Examination of the accused under section 342 is not intended to be
an idle formality, it has to be carried out in the interest of justice and
D fair play to the accused: by a slipshod examination which is the result
of imperfect appreciation of the evidence, idleness or negligence the
position of the accused cannot be permitted to be made more difficult
than what it is in a trial for an offence."

The provisions of Section 313 are for the benefit of the accused and for
E
enabling him to obtain the full benefit under the Section it is imperative that
he must be examined by the Court after the witnesses of the prosecution have
been examined and before he is called upon to enter upon his defence (State
of Maharashtra v. Lakshman Jairam, AIR (1962) SC 1204. It has to be
remembered that in our country it often happens that an accused is tried in
F a language which he understands but indifferently well, and for that reason
as well as for other equally grave reasons the intention of the statute is that
at a certain stage in the proceedings, the court itself shall put aside all
counsel, all pleaders, all witnesses, all representatives, and shall call upon
each individual accused with the authority of the court's own voice to take
advantage of the opportunity which then arises to state in his own way
G anything which he may desire to state. The importance of the statement of
accused under the Section was highlighted by this Court in Hate Singh
Bhagat Ram v. State of Madhya Bharat, AIR (1953) SC 468 where it was
pointed out that the statements of the accused recorded under the section
are intended in India to take the place of what in England and in American
H he would be free to state in his own way in the witness-box and that they
BASAVARAJ R. PATIL v. STAT~OF KARNATAKA [SETHI, J.] 673
have to be received in evidence and treated as evidence and be duly considered A
at the trial. The statement recorded under the Section can be taken into
consideration in determining the innocence or the guilt of the accused. The
accused is obliged to explain each and every circumstances appearing in the
___, evidence against him. (State of Maharashtra v. Laxman Jairam, AIR (1962)
SC 1204.
B
The object of the section would be defeated if, instead of the accused,
his lawyer replies the question with his invented ingenuity. The imaginative
suggestions of the counsel cannot be a substitute for the taking of the
statement from the accused. The Section enables a judge to ascertain from
time to time, from the accused as to what explanation he may desire to offer C
regarding any fact stated by a witness against him. It has to be noticed that
the non compliance of the provisions of Section is not a mere irregularity.
Omission to put questions to the accused on specific points vitiates the trial.
Omission to put specific points appearing against the accused apparently
occasions prejudice to him which cannot be rectified under Section 465 of the
Code of Criminal Procedure. It is true that all omissions on some points to D
be put to the accused under Section 313 would not vitiate the trial but the
failure to put vital points and circumstances is sure to occasion a miscarriage

- of justice and thus vitiates the trial to that extent. This Court in S. Harnam
Singh v. The State (Delhi Admn.), AIR (l 976) SC 2140 highlighting the
importance of Section 313 of the Cr.P.C., (Section 342 of Old Code) and the
obligations of the Court in that regard, held :
E

"Section 342 of the Code of Criminal Procedure, 1898 casts a duty on
the Court to put, at any enquiry or trial, questions to the accused for
the purpose of enabling him to explain any circumstances appearing
in the evidence against him. It follows as a necessary corollary F
therefrom that each material circumstance appearing in evidence against
the accused is required to be put to him specifically, distinctly and
separately. Failure to do so amounts to a serious irregularity vitiating
the trial if it is shown to have prejudiced the accused. If the irregularity
does not, in fact, occasion a failure of justice, it is curable under G
section 537 of the Code."

The question as to whether it is obligatory for the court to examine the
accused himself and not his counsel under the Section has been the subject
of controversy between the various High Courts in the country which is
reflected in the following judgments : H
674 SUPREME COURT REPORTS (2000] SUPP. 3 S.C.R.

A 1967 All WR 222 (223); 1989 Cri LJ 221 O; (1989) 68 Cut LT 237 (1985
Cri LJ 154 (Delhi); 1988 Cri. LJ (Cal); 1988 Cri LJ 511; 1987 Raj LW 397;
AIR 1954 All 231; 1954 Cri LJ 492; AIR 1953 All 781; 1953 Cri LJ 1806;
AIR 1934 All 693: 35 Cri LJ 879; AIR 1969 SC 381 : 1969 Cri LJ 654
AIR 1962 Cal 203 (FB); AIR 1955 NUC (Assam) 4208; 1975 Cri LJ 1272
(Raj); 1974BLJR481; l972CriLJ l346(0rissa);ILR 1971 Cut82;AIR
B 1921 Mad 679: 23 Cri LJ 697; AIR 1953 Madh B 26: 1953 Cri LJ 253
(DB); AIR 1959 Punj 228; 1959 Cri LJ 651; 1973 Cri LJ 262 (Ker); AIR
1959 All 623; 1959 Cri LJ 1134; AIR 1968 Delhi 202: 1968 Cri LJ 1162;
(1913) 14 Cri LJ 272 (Sind); AIR 1950 Ajmer 15: 51 Cri LJ 843; (1971)
73 Pun LR 145; 1985 Cri LJ 154: 1984 Rajdhani LR 375 (DB)(Delhi).
c The conflict of judicial pronouncements by various High Courts was
settlep and set at rest by a three Judges Bench of this Court in Bibhuti
Bhushan Das Gupta v. State of West Bengal, [1969] 2 SCR 104. The Court
noted that the question of the pleader representing the accused for purposes
of Section 342 (Old Code) and his examination in place of the accused, has
D been the subject of sharp conflict of judicial opinion in the country. Most of
the decisions, upto 1962, were based upon the majority view of the three
Judge Bench Judgment of Calcutta High Court in Prova Devi v. Mrs. Fernandes,
AIR ( 1962) Calcutta 203. After a full examination of all the decided cases on

E
the subject, this Court agreed with the minority view expressed in Prova
Devi's case (supra). In this regard it was held :
"The main arguments in favour of the view that the examination of the
-
pleader is sufficient compliance with the provisions of section 342
may be summarized as follows. The pleader authorised to appear on
behalf of the accused can do all acts which the accused can do. The
representation of the pleader extends throughout the trial except as
F provided in section 366(2). The form of the summons shows that the
pleader may answer to charge on behalf of the accused at every stage
of the proceedings. He may even plead guilty under Sections 242, 243,
25 lA, 255 and 271. There is no reason why he cannot be examined
under Section 342. That section is subject to and controlled by Section
205. The accused can refuse to answer questions under Section 342
G
and there is no point in insisting on his personal attendance if he has
no intention to answer them. Accused persons will suffer harassment _{ .
and inconvenience if the magistrates have no discretion to dispense
with their personal examination under Section 342. Having considered
all these arguments we are not convinced that pleader can be examined
H in place of the accused under Section 342.
BASVARAJ R. PATILv. STATE OF KARNATAKA [SETHI, J.) 675
Section 342 reads as follows :- A
"342 (I) For the purpose of'enablinu; the accused to 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 the B
case after the witnesses for the prosecution have been examined and
before he is called on for his defence.
(2) The accused ~hall not render himself liable to punishment by
refusing to answer such questions, or by giving false answers to
them; but the Court and the jury (if any may draw such inference from C
such refusal or answers 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 has committed. D
(4) No oath shall be administered to the accused when be is examined
under sub-section (I)".

" Sub-section (I) of section 342 consists of two parts, the first part
gives a discretion to the court to question the accused at any stage E
of an inquiry or trial without previously warning him. Under the
second part the court is required to question him generally on the
case after the witnesses for the prosecution have been examined and
before he is called for his defence. The second part is mandatory and
imposes upon the court a duty to examine the accused at the close
of the prosecution case in order to give him an opportunity to explain F
any circumstances appearing against him in the evidence and to say
in his defence what he wants to say in his own words. He is not
bound to answer the questions but if he refuses to answer or gives
false answers, the consequences may be serious, for under sub-
section (2) the answers as it thinks fit. Under sub-section (3) the G
answers given by the accused may be taken into consideration in the
inquiry or trial. His statement is material upon which the Court may
act, and which may prove his innocence, (see State of Maharashtra
v. laxman Jairam). Under sub section (4) no oath is administered to
him. The reason is that when he is examined under Section 342 he is
not a witness. Before Section 342A was enacted, he was not a H
676 SUPREME COURT REPORTS (2000] SUPP. 3 s.c.R.
.
[

A competent witness for the defence. His statement under Section 342
was intended to take the place of what he could say in his own way
in the witness box. (see Hate Singh .v. State of Madhya Bharat).
Under Section 342A he is not a competent witness. But the provisions
Of Section 342A does not affect the value of his examination under
Section 342. Under sub section (3) of Section 342 his answers may be
B put in evidence for or against him in other inquiries or trials for other
offences. For instance if in a trial for murder he says that he concealed
the dead body and did not kill the victim his statement may be used
as evidence ag~inst him in a subsequent trial for an offence under
Section 20 I.
c The privilege of making a statement under Section 342 is personal to
the accused. The clear intention of the Section is that only he and
c nobody else can be examined under it. This conclusion is reinforced
if we look at Section 364. The whole of his examination including
every question put to him and every answer given by him must be
D recorded in full and interpreted to him in a language which he
understands, and he is at liberty to explain or add to his answers; and
when the whole is made conformable to what he declares is the truth
the record has to be signed by him and the Magistrate. The idea that
the pleader can be examined on his behalf is foreign to the language ..
of Sections 342 and 364. It was well observed by Rankin J. in Promotha
E Nath v. Emperor, AIR (1923) Cal. 470 that:

" ...... the intention of the statute is that at a certain stage iil the
case, the court itself shall put aside all counsel, all pleaders, all
witnesses, all representatives and shall call upon an individual
accused with the authority of the Courts own voice, to take
F advantage of the opportunity which then arises to state in his
own way anything which he may be desirous of stating ...... what
is necessary is that the accused shall be brought face to face
solemnly with an opportunity given to him to make a statement
from his place in the dock in order that the Court may have the
G advantage of hearing his defence ifhe is willing to make one with
his own lips."

The proposition that a pleader authorised to appear on behalf of the
accused can do all acts which the accused himself can do at the trial
is too wide. If the statute gives the accused a personal privilege or
H imposes upon him a personal duty, only he can exercise the privilege
BASAVARAJ R. PATILv. STATE OF KARNATAKA [SETHI, J.] 677
or perform the duty. Thus under sec. 366 (2) the accused must hear A
the judgment in person unless the sentence is one of fine only or
unless he is acquitted. Under sec. 342A only the accused can give
evidence in person and hi~ 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 B
Section 342A. The privilege and the duty of answering questions
under Section 342 cannot 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 the prosecution evidence is being taken. C
But at the close of the prosecution evidence the accused must be
questioned and his pleader cannot be examined in his place.

Sections 205 and 540A do not expressly mention that the pleader
cannot be examined under Sec. 342 but this does not lead to the
inference that the pleader can be so examined. On the other hand secs. D
353, 360, 361 and 366 expressly provide that the pleader may represent
the accused for certain purposes, but from this fact alone no inference
can be drawn that the pleader cannot represent the accused for
purposes of section 342 or other sections. It is from the scheme,
purpose and language of section 342 that we are driven to the
conclusion that the examination under the section must be of the E
accused person and not his pleader.

In Dorabshah v. Emperor, the Bombay High Court held that where the
accused is permitted to appear by his pleader under Sections 205 the
pleader may on his behalf be examined and may plead guilty under F
sections 242 and 243. Whether the Court can act upon an admission
of guilt by the pleader under sections 242, 243, 251A, 255 and 271
does not directly arise in this case and we express no opinion on it.
It is sufficient to say that the language of those sections and the
effect of admissions under them are entirely different.

We are not impressed with the argument that an accused person will
G
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. If there is no evidence H
678 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A implicating the accused no explanation from him is necessary and he
need not be examined under section 342. If there is evidence implicating
him, it is in his interest that he should be examined personally.

There are exceptional cases when an examination of the accused
personally under section 342 is not necessary or possible. Where the
B accused is a company or other juridical perscn it cannot be examined
personally. It may be that the Court may then examine a director or
some other agent on its behalf (see Express Diary Ltd. v. Corporation
of Calcutta, ILR (1959) 2 Cal. 622. Exceptional cases apart, only the
accused in person can.be examined under Section 342."

C The Law Commission oflndia in its 4lst Report submitted in September,
1969 dealt in detail with the history, purpose and object of the then Section
342 of the Code and after noticing the law in England, on the subject, felt the
necessity by realising the importance of examination of the accused by the
Criminal Courts in the Country, observed :
D "Furthermore, differing from civil cases in this respect, the parties
in criminal cases are not equally placed. The whole machinery of the
States is against the accused. The accused has no investigating
machinery, no power of search and no power of questioning, which
the prosecution has. If he puts forth a definite case, he may not in
E many cases be able to prove it. This is also the reason why in civil
cases preponderance of evidence is sufficient, but in criminal cases
a shadow of doubt, operates in favour of the accused. Even where the ·-
State provides counsel for the accused, experience shows that the
Court has to guide counsel who is usually a junior member of the Bar.
In this state of affairs, examination of the accused under Section 342
F appears to the essential proceeding. The mode of applying the section
would, no doubt, vary with the knowledge intelligence and experience
of the Judge. If in a particular case the Judge exceeds the permissible
limit and subjects the accused to an inquistorial examination the
superior courts will correct the error. - The words "question him
G generally" in the Section are clearly intended to prevent unfair
interrogation of the accused."

Dealing with the question of examination of pleader in places of accused,
noticing the conflicting judgments of various High Courts and the final
verdict of this Court in Bibhuti Bhushan Das Gupta's case (supra), the
H Commission opined :-
BASAVARAJ R. PATIL v. STATE OF KARNATAKA [SETHl,J.] 679

"Where the Court has dispensed with the personal attendance of the A
accused, is it necessary that his pleader should be examined under
Section 342, or should such examination be of the accused himself?
There is also a controversy on this point, and different views have
been expressed both as to what the law is and as to what it should
be. One view is that the accused himself should be examined in all
cases, and even where his personal attendance has been dispensed B
with at other hearings, the court must require him to be present for
examination under Section 342. Another view is that where it is not
a serious case and personal attendance has been dispensed with, the
court may also dispense with the examination of the accused or of his
pleader. It is against the intendment of Section 342 to examine the C
pleader instead of the accused and such examination serves no useful
purpose."

On the basis of the judgment of this court and the recommendations of the
Law Commission, Section 313 of the Code was enacted by the legislature
mandating upon the criminal courts to necessarily examine the accused and D
not their pleaders, after the witnesses of the prosecution have been examined
and before the accused entered upon his defence.

Dealing with the substituted Section 313 of the Code, brought on the
statute book on the basis of the recommendations of the Report of the Law
Commission, this Court again in Usha K. Pillai v. Raj K. Srinivas, [1993] 3 E
sec 208 unambiguously held :
"This sub section was introduced in its present fonn pursuant to the
recommendations 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 F
section(!) of Section 342 has now been divided into two clauses (a)
and (b). Clause (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 inquiry or trial whereas clause (b) uses
the expression 'shall' to convey that it is mandatory for the court to G
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 ( l) 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 attendar.ce at an earlier point of time. H
680 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A 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
B 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)
c to questicin the accused at any stage of the inquiry or trial while
clause (b) obligates the Court to question the accused before he
enters 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."

D The argument that insisting the accused to appear before the court for the
purposes of his statement under Section 313 of the Code would cause him
inconvenience and harassment was not considered as valid for making an
exception to the general rule to his personal examination. It was found that
the examination under the Section becomes necessary, only at the close of
E the prosecution evidence, when the magistrate finds that there are incriminating
circumstances requiring an explanation by the accused.

The scheme of the Code shows that after the evidence of the prosecution
is closed, the local \nspection, if any, held and the court witnesses in terms
of Section 311 are examined, the Court would, then and then alone, direct the
F examination of the accused under Section 313, upon being satisfied that he
was required to personally explain the circumstance appearing in the evidence
against him. Such a recourse to examine the accused at this stage cannot in
any way termed to be causing hiJ:!! inconvenience or occasioning any
harassment. Otherwise in the absence of such examination, and without leading
G defence evidence, the accused in all probability is likely to be convicted and
sentenced for the commission of the offence with which he has been charged
and tried by the magistrate or the Court. In that event permitting the examination
of the accused personally, is actually for his benefit. There are cases where
the accused during the course of his examination under this Section, may
place on record any clinching evidence which may not even require him to
H produce any defence evidence. The accused when personally appearing can
BASAVARAJ R. PATIL v. STATE OF KARNATAKA [SETHI, J.] 681

also be in a bargaining position by persuading the Court to take a lenient view A
despite proof of material circumstances against him. Such a statement by
which the accused may admit, any of the allegations or circumstances appearing
against him, cannot be made by his pleader. Any such statement made by his
counsel cannot bind the accused, The conviction or sentence passed against
the accused, without offering him an opportunity of explaining the B
circumstances would not only violate the maxim of audi a/teram partem but
also be contrary to the concept of the "due process of law" recognised and
accepted by all civilised nations.

Looking at the history of the section, the various conflicting
pronouncements of the High Courts in the country and authoritative C
pronouncements of this court by Three Judge Bench, the Law Commission
recommended the necessity of examination of the accused personally. The
recommendation of the Law Commission were accepted by the legislature.
The incorporation of the provision necessitating the examination of the accused
personally, undoubtedly is the reflection of a conscious decision, which the
legislature took in its wisdom. D
There is no dispute to the settled legal position that the Courts only
interpret the law and do not legislate it. Where the legislature's intention is
clear, there is no scope of reading between the lines or putting an interpretation
contrary to the intention of the legislature. Adding to or providing for ancillary
measures can be resorted to by the Courts only in grey areas and not in the E
covered fields. If on its true construction statute leads to anomalous results,
the courts have no option but to give effect to it and leave it to the legislature
to amend or alter the law. Any other view, even based on howsoever high,
cherished or pious desire cannot be the substitute of specific legislative
indictment. · F
This Court in Anandji Haridas and Co. v. Engg. Mazdoor Sangh, [1975]
3 sec 862 held :

As a general principle of interpretation where the words of a
statute are plain, precise and unambiguous the intention of the G
Legislature is to be gathered from the language of the statute itself
and no external evidence such as parliamentary debates, reports of the
committees of the Legislature or even the statement made by the
Minister on the introduction of a measere or by the framers of the Act
is admissible to construe those words. It is only where a statute is not
exhaustive or where its language is ambiguous uncertain, clouded or H
682 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A susceptible of more than one meaning or shades of meaning that
external evidence as to the evils, if any, which the statute was intended
to remedy, or of the circumstances which Jed to the passing of the
statute may be looked into for the purpose of ascertaining the object
which the Legislature bad in view in using the words in question."

B In C.S.T V. Parson Tools and Plants. [1975] 4 sec 22 it was held:

An enactment being the will of the Legislature, the paramount rule
of interpretation which overrides all others, is that a statute is to be
expounded "according to the intent of them that made it". "The will

c
of the Legislature is the supreme law of the land and demands perfect
obedience." "Judicial power is never exercised" ~aid Marshall, C.J. of
..
the United States, "for the purpose of giving effect to the will of the
Judges; always for the purpose of giving effect to the will of the
Legislature; or in other words to the will of the law."

"If the Legislature wilfully omits to incorpomte something of an
D analogous Jaw in a subsequent statute, or even if there is a casus
omissus in a statute, the language of which is otherwise plain and
unambiguous the Court is not competent to supply the omission by
engrafting on it or introducing in it, under the guise of interpretation
by analogy or implication, something what it thinks to be a general
E principle of justice and equity. To do so "would be entrenching upon
the preserves of Legislature" the primary function of a court of law
being jus decere and not just dare.

Again in S. Harnam Singh v. Shivrani, [1981] 2 SCC 535, this Court held "that
the intention and the meaning of the statute is to be sought in the words used
F in the statute itself which must, if they are plain and unambiguous, be applied
as they stand, however strongly it may be suspected that the result does not
represent the real intention of the legislature. It is the duty of the Court to
give fair and full effect to statute which is plain and unambiguous without
regard to the particular consequence in a special case."
G In Bank of India v. Vijay Transport, [1988] Suppl. SCC 47 it was held
"that interpreting the words of the provisions of a statute, the setting in
which such words are placed may be taken into consideration, but that does
not mean that even though the words which are to be interpreted convey a
0
clear meaning, still a different interpretation or meaning should be given to
H them because of the setting."
BASAVARAJ R. PATIL v. STATE OF KARNATAKA [SETHI, J.] 683

I am, therefore, convinced that Section 313 of the Criminal Procedure A
Code does not envisage the examination of the counsel, in place of the
accused and the law laid. down by this court by three Judge Bench in 1969
and later on followed in 1973, does not require any reconsideration, particularly
by a Bench of the same strength and of a coordinate jurisdiction.

In the instant case, the appellants were tried for the offence punishable B
under Section 498 A of Indian Penal Code read with Sections 3 and 4 of
Dowry Prohibition Act. After the trial the Court convicted the appellants for
reasons detailed in its order dated 23rd February 1996. Feeling aggrieved by
the order of acquittal, the respondent No. 2 herein who was the informant in
the case filed the criminal revision petition in the High Court. Her main C
contention was that the offence with which the appellants herein were charged,
were triable as warrant cases and that the trial magistrate committed an error
of law by not personally examining accused No. 1 and 4 in terms of Section
313 of the Code. The factual position is that the counsel of the aforesaid
accused persons had filed an application seeking exemption of their personal
appearance in the Court and to reply questions put under Section 313 of the D
Code, on their behalf. Relying upon the judgment of this Court in AIR (1993)
SC 2091, the High Court set aside the order of the acquittal and held :

"In this case also, A-1 is stated to be residing in America and
admittedly A-4 was residing at Gadag and there is no materials to
show that A-I was residing in America even during the relevant time. E
There was no impediment for the accused to appear before the Court
even otherwise also as held by Their Lordships in a warrant case,
there is no discretion for the Court to dispense with the examination
of the accused. Under that circumstances, this revision petition
deserves to be allowed. F
In the result, therefore, this revision petition is allowed and the
impugned order is set aside. The matter now stands remitted to the
Court below with a direction to restore C.C. 22973/1993 on the file of
the 10th Addi. C.M.M., Bangalore. The learned Magistrate is directed
to examine A-1, A-2 and A-4 the accused to record 313 statement and G
proceed to pass the order in accordance with law."

Though, strictly speaking, the High Court took a view which is in conformity
with the law laid down by this Court yet it ignored the basic concept and
object of Section 313, admittedly enacted for the benefit of the accused
affording him the opportunity to explain the circumstances appearing in the H
684 SUPREME COURT REPORTS [2000] SUPP. 3 S.C.R.

A evidence against him. The mandate of Section 313 is imperative with no
exception. However, the violation of its compliance can be objected to only
by the accused for whose benefit the Section has been enacted. The
complainant or the prosecution cannot be permitted to allow the illegality ,
being committed and perpetuated and after the enquiry or trial results in
acquittal of the accused, to complain on the basis of the alleged violation.
B There is no allegation nor could there be any that the personal non-examination.
of the accused persons had, in any way, adversely affected the prosecution.
Section 465 of the Code could not be relied upon by the prosecution for the
purposes of assailing the judgment of acquittal after the completion of the
trial. Despite laying down. the correct position of law the High Court appears
.C to be not justified in setting aside the order of acquittal at the instance of the
informant of the crime. In the absence of any complaint by the accused for
their non examination under Section 313 of the Code, there was no justification
to remand the case only for the purposes of examining the concerned accused
personally and to pass fresh orders on merits in accordance with law.

D VM Appeal disposed of.