TMI Blog1993 (4) TMI 305X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ianship 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 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition 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 responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cods. Even in cases where the personal presence of the accused has been dispensed with under section 205(1) or section 317 of the Code the Magistrate can dispense with the mandatory requirement of clause (b) only in a summons-case i.e, a case other than a warrant-case This is clear on plain reading of the definitions of a summons case in Section 2(w)and a warrant-case in section 2(x)of 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 dispense ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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