Ahmadi, J. - (1.) Special leave granted.
(2.) The brief facts leading to this appeal are that the appellant's daughter Geetha married respondent No. 1 (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 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 the appellant 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 India presumably because her husband had developed intimacy with an American girl and had started to ill-treat her. Within a week after her arrival in India she committed suicide by setting herself on fire. Nivedita continued to remain in the care and custody of the appellant. The first respondent married the American girl, with whom he had developed intimacy, sometime in the year 1983-84 and embraced Christianity. Thereupon the appellant filed an application in the Court of the Chief Judge, City Civil Court, Hyderabad, being O.P. No. 203 of 1984, for appointing her as the guardian of the person of the minor child under the provisions of Guardians and Wards Act, 1890. Respondent No. 1 entered an appearance in the said proceedings through his Advocate and sought time to file a counter. Later, he returned to India on December 14, 1984. After reaching India he obtained a duplicate passport for Nevedita 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 turn lodged a First Information Report in that behalf. On enquiry the appellant's son traced respondent No. 1 and his three companions (who had assisted him in procuring the child) at the Madras Airport.. Despite his entreaties, respondent No. 1 forcibly took the child to U.S.A. via Singapore. Since then Nivedata is in the custody of respondent No. 1 and his newly married wife Maureen. After thus removing the child from the lawful custody of the appellant, respondent No. 1's Advocate withdrew from the guardianship proceedings. The Court, however, appointed the appellant as the guardian of the person of Nivedita. The appellant also filed a complaint alleging kidnapping against respondent No. 1 and his three companions who had aided and abetted him in the Court 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 respondents thereafter moved an application under S. 482 of the Code of Criminal Procedure, 1973 (hereinafter called 'the Code') for quashing the process on the plea that in law a father is entitled to his daughter's custody and hence cannot be liable under S. 363, I.P.C. In that application the High Court directed that the child be produced before it. However, the child was not produced before the Court and the Court ultimately dismissed the application against which a Special Leave Petition was filed in this Court. This Court also rejected the Special Leave Petition. On the other hand while the application under S. 482 of the Code was pending in the High Court, the father of respondent No. 1 filed an application for rescinding the order appointing the appellant as the guardian of the person of Nivedita. In the meantime, the Superior Court in New Jersey, U.S.A., was moved which Court passed an order permitting respondent No. 1 to retain the custody of the child on the ground that the Indian Courts had violated the due process clause. The Chief Judge, City Civil Court, Hyderabad, ultimately dismissed the father's application for rescinding the earlier order by which the appellant was appointed the guardian of the person of the child. As stated earlier the Superior Court. New Jersey, having permitted respondent No. 1 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 Christianity. 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. 1 and his associates, respondent No. 1 applied for exemption from personal attendance which was granted on condition that he will appear whenever called upon to do so by the Court. Respondent No. 1 was thus 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. 1 and the other respondents and on completion of the evidence respondent No. 1's Advocate sought permission to be examined in place of respondent No. 1 under S. 313 of the Code. This permission was granted and he was examined under S. 313 of the Code. On completion of the examination the appellant not being satisfied with some of the replies given by the Advocate filed an application praying that respondent No. 1 should be directed to personally appear in Court and be examined under S. 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 on 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 respondent No. 1 himself under S. 313 of the Code
(3.) Sub-sec. (1) of S. 313 reads as under: "Power to examine the accused-(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court- (a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary; (b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case: Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under Cl. (b)." This sub-section was introduced in its present form pursuant to the recommendation made in the 41st 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-sec. (1) of S. 342 has now been divided into two Cls. (a) and (b). Cl. (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 Cl. (b) uses the expression 'shall' to convey 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 a new provision which came to be added to sub-sec. (1) with a view to enabling the Court to dispense with the examination of the accused under Cl. (b) in a summons case if the Court has already dispensed with his personal 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 Cl. (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 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 S. 313(1) of the Code, that the Court is empowered by Cl. (a) to question the accused at any stage of the inquiry or trial while Cl. (b) obligate the Court to question the accused before he enters on 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.;