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Emperor Vs. Jaffar Cassum Moosa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Application For Revision No. 430 of 1933
Judge
Reported inAIR1934Bom212; (1934)36BOMLR433
AppellantEmperor
RespondentJaffar Cassum Moosa
Excerpt:
.....4(1), 205 and 342(r) - accused-personal attendance of accused dispensed with-questioning of accused-pleader-constituted attorney.;section 342 of the criminal procedure code must be read subject to the provisions of section 205. hence, where a magistrate exercises the power given to him by section 205 of dispensing with the personal attendance of the accused and permits him to appear by his pleader, the magistrate is not bound to question the accused personally.;emperor v. dorabshah bomanji (1925) 28 bom. l.r. 102 and maung po nyein v. haka singh (1926) i.l.r. 4 ran. 506 followed.;the term 'pleader,' as defined in section 4(1)(r) of the code, is not limited to a person authorised by law to appear in a particular court, and includes a constituted attorney.;emperor v. dorabshah..........person' occurring in the definition are not restricted in their meaning, and are not limited to a person authorized by law to appear in a particular court. whether i should have arrived at that conclusion myself, it is not necessary to consider, because we are bound by the decisions of this court to which i have referred. we must, therefore, hold that the agent in this case was properly authorized to appear for the accused.4. that being so, we dismiss the application.barlee, j.5. i agree. speaking for myself, even apart from authority, i would hold that the words, 'any other person appointed with the permission of the court to act in such proceeding' are not to be read ejusdem generis with the previous words, and do not refer to advocates, pleaders,-or mukhtars authorized under any law.....
Judgment:

John Beaumont, Kt., C.J.

1. This is a revision application in which the accused takes two purely technical points against his conviction. He was convicted of an offence under Section 471 of the City of Bombay Municipal Act, 1888, and sentenced to a fine of Rs. 50. It appears from the record that one Dawood Karamalli appeared as the constituted attorney of the accused and was allowed to appear for him in Court, that permission being given under Section 205 of the Criminal Procedure Code. The first point taken is that the Magistrate ought to have insisted on the accused appearing in person in order that he might be questioned under Section 342 of the Code, but, in my opinion, where the Magistrate exercises the power given to him by Section 205 of dispensing with the personal attendance of the accused and permits him to appear by his pleader, the Magistrate is not bound to question the accused personally. Section 342 must be read subject to the provisions of Section 205. That has been held by this Court in Emperor v. Dorabshah Bomanji (1925) 28 Bom. L.R. 102 and by the Rangoon High Court in Mawng Po Nyein v. Haka Singh I.L.R. (1926) Ran. 506

2. Then the second point taken is this: It is said that the constituted attorney in this case, was not the accused's 'pleader', who is the agent referred to in Section 205. Now the agent in question was admittedly not a pleader or a qualified lawyer of any kind ; he was an estate agent, and it is certainly startling to me to be told that the presiding Judge in a criminal case may allow anybody he chooses, though not a qualified pleader or other person having a right of audience before the Court, or any legal qualification, to appear for an accused person. However we have to consider the definition of ' pleader' in Section 4(1)(r) of the Code, which is in these terms:

Pleader,' used with reference to any proceeding in any Court, means a pleader or a mukhtar authorized under any law for the time being in force to practise in such Court, and includes (1) an advocate, a vakil and an attorney of a High Court so authorized, and (2) any other person appointed with the permission of the Court to act in such proceeding.

3. It has been held by this Court in the case, to which I have referred, of Emperor v. Dorabshah Bomanji and also, by another bench of this Court in In re Bajirao Abaji : AIR1928Bom33 that the words, 'any other person' occurring in the definition are not restricted in their meaning, and are not limited to a person authorized by law to appear in a particular Court. Whether I should have arrived at that conclusion myself, it is not necessary to consider, because we are bound by the decisions of this Court to which I have referred. We must, therefore, hold that the agent in this case was properly authorized to appear for the accused.

4. That being so, we dismiss the application.

Barlee, J.

5. I agree. Speaking for myself, even apart from authority, I would hold that the words, 'any other person appointed with the permission of the Court to act in such proceeding' are not to be read ejusdem generis with the previous words, and do not refer to advocates, pleaders,-or mukhtars authorized under any law to practise. If the legislature meant that 'any other person' must be a person authorized to practise, the following words, 'with the permission of the Court' are both unnecessary and inappropriate, since no permission is required for any person to practise who is authorized by law to do so. It seems to me that this portion of the definition has been enacted for the sake of convenience so as to enable poor persons in inaccessible parts of the country to obtain assistance in their cases when pleaders are not available. It is rather curious, however, that this provision should be used in a city like Bombay. However, it applies everywhere and the Court was justified in allowing the constituted attorney of the accused in this case to appear on his behalf.

6. I have nothing to add about the other point which arises in the case.


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