G.P. Bhutt, C.J.
1. The question in this reference is whether the plea of guilty made on behalf of the accused by their counsel in their presence under Section 243 of the Code of Criminal Procedure was a legal basis for conviction.
2. The decision in Municipal Board Lucknow v. Tulsi Ram and Sons, AIR 1925 Oudh 305 (2), which is relied upon by the referring Judge, is laconic and is only an endorsement of the report of the magistrate that his procedure was incorrect. The question has been discussed more fully in Dorabshah Bomanji v. Emperor, ILR 50 Rom 250; (AIR 1926 Bom 218) in which it was held that where the Court dispenses with the personal attendance of an accused and permits him to appear by a pleader, it can act upon a plea given by the pleader in a ease falling under Sections 242 and 243 of the Code of Criminal Procedure. This is in accordance with the decisions in England under the Summary Jurisdiction Act, 11 and 12 Vict., c. 43. Section 14, on which the provisions of Sections 242 and 243 of the Code of Criminal Procedure appear to be bused. This means that the word 'accused' in these sections is not limited to the person of the accused but may include a pleader where he is permitted by the Court to appear through him. Such permission is necessarily implied where the Court proceeds to examine the pleader. The presence of the accused in Court docs not alter this position. To say, therefore, that the plea given by the pleader can be a basis of conviction when the accused is absent, but not when he is present, would raise a repugnancy in principle which it would be difficult to reconcile.
3. In Emperor v. Sursing, 6 Bom LR 861, the accused was present in the Court when, the pleader gave his plea. The observation of Batty J., that 'no pleader can be called upon to plead on behalf of his client 'guilty' or 'not guilty'; and it is improper for a Magistrate to act on such plea' was not endorsed by Aston J., who only remarked that it would have been more regular in form it the magistrate had called upon the accused to say with his own lips whether he denied the truth of the charge. The views of Aston J., found approval in ILR 50 Bom 250: (AIR 1926 Bom 218) (supra) and have my respectful concurrence.
4. I see no reason to doubt that the accused had duly instructed their counsel to admit the particulars of the offence. Accordingly the fact that the plea of 'guilty' was not recorded in the counsel's own words was only an irregularity and does not vitiate the proceedings: See Section 537 of the Code of Criminal Procedure.
5. The reference is rejected.