minal Appeal No 398 of 1993
From the Judgment and Order dated 1231992 of the IVth Metropolitan Megistrate Hyderabad in Crl
MP No 9292 in CC No 234 of 1985
WITH Writ Petition No 623 of 1993
Under Article 32 of the Constitution of India KK Venugopal LK Pandey and section Anand for the Petitioner
DP Gupta
Solicitor General and Ms A Subhashni for the Respondents
The Judgment of the Court was delivered by AHMADI J
Special leave granted
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 470 India presumbly because her husband had developer 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 OP No 203 of 1984 for appointing her as the guardian of the person of the minor child under the provisions of  Respondent No 1 entered an appearance in the said proceedings through his Advocate and sought time to file a counter
Leter he returned to India on December 14 1984 After reaching India he obtained a duplicate passportfor Nivedita and thereafter with the help of his associates picked up Nivedita fromher school ignoring the protests of the Head Mistress of the School
The HeadMistress 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 respon dent 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 USA via Singapore
Since then Nivedita 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 CCNo 234 of 1985
Process was issued in the said proceedings land the accused persons were duly served
The respondents thereafter moved an application under Section 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 section 363 PC
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 Section 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 Supreme Court in New Jersey USA was moved which court passed an order permitting respondent No1 to retain 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 471 earlier order by which the appellant was appointed the guardian of the person of the child
As staed 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 Christianty
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 section 313 of the Code
This permission was granted and he was examined under section 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 prayino that respondent No 1 should be directed to personally appear in Court and be examined under section 3 13 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 section 313 of the Code Sub section 1 of section 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 aMay at any stage without previously warning the accused put such questions to him as the Court considers necessary bshall after the witnesses for the prosecution have been examined and before he is called on for his defence question him generally on the case 472 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 clause b
 This sub section was introduced in its present form pursuant to the recommendations 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 section 1 of section 342 has now been divided into two clauses a  b
Clause a uses the expression 1 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 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 1 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 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 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 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 to question the accused at any stage of the inquiry or trial while clause b obligate the Court to question the accused before he enters of 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
The newly added proviso is in the nature of an exception to clause b of subsection 1 of section 313 of the Code
It applies to a summons case it states in no uncertain terms that in a summons case where the court has dispensed with the personal attendance of the accused it would be open to the court to dispense with the examination of the accused under clause b of section 313 1 of the Cods
Even in cases where the personal presence of the accused has been dispensed with under section 2051 or section 317 of the Code the Magistrate can dispense with the mandatory requirement of clause b only in a summons case ie a case other than a warrant case This is clear on plain reading of the definitions of a summons 473 case in Section 2wand a warrant case in section 2xof the Code
A warrant case is defined as one relating to an offence punishable with death imprisonment for life or imprisonment for a term exceeding two years
Since an offence under section 363 IPC is punishable with 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 2051 or section 317 of the Code the court cannot dispense with the examination of the accused under clause b of section 313 of the Code because such examination is mandatory
If the accused is a company or a juridical person it may be open to examine the person conversant with the facts of the case
It would thus appear that the mandate of section 313 1 b demands that the accused person if not a company or other juridical person most be personally examined to explain the incriminating circumstances appearing against him in the prosecution evi dence and the examination of his lawyer would not be sufficient compliance with the mandate of said provision
A similar question arose for consideration in Bibhuti Bhushan Das Gupta  Anr
vs State of West Bengal   under the provisions of the old Code
In that case this Court noticed that the accused was not personally examined under section 342 of the Code
It was submitted that the trial was vitiated as the accused was not personally examined as required by section 342 of the old Code
The said argument was sought to be repelled on the ground that the examination of the pleader was sufficient compliance with the said provision since the pleader was authorised to appear on behalf of the accused and do all acts which the accused could personally do
Dealing with this submission this court on a reading of Section 342 pointed out that the privilege of making a statement under that section is personal to the accused and the requirement cannot be satisfied by examining his pleader in his place
The right of the pleader to represent the accused does not extend to the pleader answering questions under section 342 in place of the accused person
The submission that such a view will cause inconvenience and harassment to the accused was also repelled in the following words We are not impressed with the argument that an accused person will 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
 474 Proceeding further this Court observed as under There are exceptional cases when an examination of the accused personally under section 342 is not necessary or possible
Where the accused is a company or other juridical person it cannot be examined personally
It may be that the Court may then examine a director or some other agent on its behalf
 It is another matter that in that case this Court did not interfere with the conviction and sentence on the ground that the non examination of the accused had not caused any prejudice and in the absence of material showing prejudice the conviction and sentence could be sustained by virtue of old section 537 section 465 of the new Code
In the result the order impugned in the present appealwrit petition of the learned Magistrate cannot be allowed to stand more so in the instant case for the reason that the accused may raise the plea of violation of the due process clause if the order is sought to be executed in the foreign court
We therefore set aside the order of the learned Magistrate and direct him to pass appropriate orders in the light of this judgment in regard to the examination of the accused under section 3131 b of the Code
As the prosecution is pending since long the learned Magistrate will take it up immediately SPS
Appeal disposed of


Summary:
The services of the appellants were terminated by the Management of a recognised school
The termination was not approved by the Inspector of Schools
The appellants filed a writ petition before the High Court for reinstatement and salaries from the date the school became an aided institution
The High Court having dismissed the writ petition appellants preferred the present appeal
Dismissing the appeal this Court HELD Section 10 A of the Orissa Education Act provides that the termination of a teacher of an aided institution shall be subject to the approval of the Inspector of Schools
Use of the word aided institution  is dear indication that the provisions of approval apply only to the aided schools
Since on the date the services of the appellants were terminated the institution was recognised only and not aided the Inspector could not have exercised the power of disapproval
Recognition of a institution for purposes of imparting education is different than bringing It on grants in aid
To the former the regulatory provisions of the Education Act or the rules do not apply
The Education Department has no control either on admission of students or members of staff
476 D F