1. This is an application in revision against an order of a Bench of special Magistrates of Meerut requiring that both the accused should appear in person to make an explanation under Section 342, Cr.P.C., Prior to the order the attendance of the accused had been excused under Section 205, Cr.P.C. Section 205(2) states:
But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and if necessary, enforce such attendance in manner herein before provided.
2. Section 342 lays down:
For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
3. The language used is compulsory as it is stated that the Court shall question him. Learned Counsel has argued that instead of questioning the accused it is open to the Court to question his advocate. Learned Counsel referred for this proposition firstly to the ruling reported in Emperor v. Dorabsha Bomanji : AIR1926Bom218 . That ruling lays down that in a summons case a pleader may make a statement under Sections 242 and 243 before the trial begins on behalf of an accused person. That is an entirely different matter from the statement under Section 342, Cr.P.C. When an accused person appears before the Court in a summons case he shall be asked whether he has any cause to show why he should not be convicted. The mere statement under that section is entirely different from the statement under Section 342 which is to explain circumstances appearing in evidence against the accused. The present case is a warrant case and therefore the procedure of a summons case has no bearing. The next ruling on which learned Counsel relied was the ruling of a Single Judge reported in Maung Po Nyein v. Haka Singh A.I.R. 1927 Rang. 73. In that case two purdah ladies were being tried before a Magistrate and the learned Judge stated:
I agree with the learned District Magistrate. The women could be permitted to answer the examination through their pleader. Section 342 has to my mind been enacted to safeguard the interests of accused persons. The legislature contemplates that they should always get an opportunity of explaining any circumstances that may appear against them....
4. I do not agree with this view of the law. Section 342 does not purport to be only in the interest of accused persons. On the contrary it is laid down that the purpose is to enable the accused to explain any circumstances appearing in the evidence against him. The accused may or may not be able to explain those circumstances, and if the accused is not able to explain the circumstances then the Court may draw a presumption against the accused. The intention of the provision in my opinion is for the furtherance of justice and to enable the Court to decide the issue in a criminal case, which is always : 'Did the accused commit the offence charged?' The learned Single Judge of the Burma High Court has made no attempt to explain the words 'question him' in Section 342(1). If the Legislature had intended to admit a statement made by an advocate in place of a statement made by the accused the Legislature would have made provision to that effect. In my opinion Sub-section 2 of Section 205 is inserted partly for the purpose of enabling the Court to act as it has acted in the present case and to require the personal attendance of the accused for the purpose of making the explanation under Section 342, Criminal P.C. Section 342(a) states that no oath shall be administered to the accused. Further it is provided in the Evidence Act, that the statement of one accused under certain circumstances may be taken into account against other co-accused. These provisions indicate that the Legislature intends that the statement should be a personal statement made by the accused and not a statement made on his behalf by an advocate. A statement made by an advocate is merely hearsay and the Court may ask questions from the advocate on which the advocate has no instructions. Moreover the Court may desire to note the appearance of the accused and his manner when the accused replies to the questions asked.
5. In one case an accused person may convince the Court by the apparent honesty of his answers and by his appearance that he is telling the truth. In another case the hesitating manner of the accused in replying to the questions may convince the Court that he is not telling the truth. It is obvious that the presence of the accused is desirable to enable the Court to come to a correct conclusion as to the truth of his statements under Section 342, Criminal P.C. Further there is provision in Section 256(2), Criminal P.C., that an accused person may hand in a written statement. That written statement will no doubt be prepared by his advocate on instructions, but the written statement is a different matter from the explanation given personally by accused under Section 342, Cr.P.C. In my opinion the procedure of the Bench Magistrates is correct. The question of jurisdiction in the first ground of revision was not urged. On the second ground it was urged that the complainant did not allege matters which would amount to offences under Sections 408, 477 and 120-B, Penal Code, The Bench have stated that they do not think that Section 477 is applicable. I think the contention is correct that Section 408 would not apply because Jai Dayal was not the servant of the complainant. But apparently the complaint amounts to this : that the complainant gave Rs. 400 in cash to Jai Dayal intending that Jai Dayal should credit that amount to the National Petroleum Company and the complaint alleges that Jai Dayal dishonestly did not credit the amount to that company, and further apparently that Jai Dayal represented that he would credit it. This might amount to an offence under Section 420, Penal Code, and the allegation of conspiracy would therefore amount to an offence under Section 120-B, Penal Code. It is for the Bench to satisfy themselves as to whether such charges have been made out or not. For that purpose the Bench are entitled to send for the accused if they consider that their personal explanation is necessary. The application in revision in therefore refused.