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-
(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 clause (b).”
Origin of the Provision
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 ‘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.
The purpose of the Provision
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.
What does the provision say?
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 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.
Therefore, even in cases where the court has dispensed with the personal attendance of the accused under section 205(1) 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 evidence 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. v. State of West Bengal [AIR (1969) SC. 381 =  2 SCR 1041 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.”
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).
Usha K. Pillai vs Raj. K. Srinivas And Ors. Etc: 1993 AIR 2090, 1993 SCR (3) 467