Case: Usha K. Pillaiv. Raj K. Srinivas and Others Vs. Union of India and Others

2. The brief facts leading to this appeal are that the appellants daughter Geetha married respondent 1 (original accused 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 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 of 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 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 Nivedita and thereafter with the help of his associated picked up Nivedita from her school ignoring the protests of the Headmistress 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 appellants son traced respondent 1 and his three companions (who had assisted him in procuring the child) at the Madras Airport. Despite his entreaties, respondent 1 forcibly took the child to U.S.A. via Singapore. Since then Nivedita is in the custody of respondent 1 and his newly married wife Maureen. After thus removing the child from the lawful custody of the appellant, respondent 1s 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 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 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 daughters custody and hence cannot be liable under Section 363, IPC. 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 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 11 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 fathers 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 1 to retain the custody of Nivedita, the childs stepmother 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 1 sent the child to a Christian School. I the complaint lodged against respondent 1 and his associated, respondent 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 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 1 and the other respondents and on completion of the evidence respondent 1s advocate sought permission to be examined in plea of respondent 1 under Section 313 of the Code. This permission was granted and he was examine 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 praying that respondent 1 should be directed to personally appear in court and be examined under Section 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.

Reasoning: 5. A similar question arose for consideration in Bibhuti Bhusan Das Gupta v. State of W. B. 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 sough 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 here are incriminating circumstances requiring an explanation by the accused." *Proceeding further this Court observed as under"There are exceptional cases when an examination of the accused personally under Section 342 is no 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 no 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)