Advocates:
SHANKAR DIVATEA. SUBBA RAO

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PETITIONER:

BASAVARAJ R. PATIL AND OTHERS

Vs.

RESPONDENT:

STATE OF KARNATAKA AND OTHERS

DATE OF JUDGMENT: 11/10/2000

BENCH:

S.N.Variava, K.T.Thomas

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

J U D G M E N T 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 Usha K. Pillai vs. 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).

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 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

Procedure (for short the Code).

On 10.3.1993, Arundathi lodged a complaint with the

police alleging, inter alia, that her husband and his sister

(Kumari Jaya second appellant) 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 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. When the next stage for examination of the

accused under Section 313 of the Code reached the trial

court passed the following proceedings:

Evidence closed and statement under Sec/313 Cr.P.C.

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was kept ready 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 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.

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. Pillai (1993 (3) SCR

467), trial court has no other alternativ