P. Govinda Menon, J.
1. The Revision Petitioner R. K. Karanjia, Editor of Blitz, Bombay is the accused in a case of defamation filed by the respondent. On an application by him, his personal attendance was exempted during the course of the trial under Section 205 Cr. P. C. After the evidence for the prosecution was recorded, the case stood posted to 14-4-1960 for further proceedings. On that day the petitioner was not present in court. His advocate presented a petition stating that as the personal attendance of the petitioner had been exempted his presence need not be insisted upon for his examination under Section 342 Cr. P. C. The learned Magistrate heard the parties and passed an order that the examination of the accused under Section 342 would mean the examination of the accused in person and not through his 'Mukthyar' or pleader and directed the accused to appear in person on the next hearing date. The Petitioner's advocate has come up in revision against the above said order. In para 3 of the petition, it is stated that the petitioner is in Europe as a Journalist to cover the Commonwealth Conference and later the Summit talks and it would be very hard if he is directed to return and appear in court before the close oi his professional work in foreign countries. The only question involved in this petition is whether an advocate of the accused who is exempted under Section 205 Cr. P. C., could be examined under Section 342 Cr. P. C., or whether it is mandatory that the accused should be examined in person.
2. It is true that a person who is exempted from personal attendance under Section 205 cannot claim as a matter of right that he should not be ordered to appear personally in court at a later stage. Sub-section 2 of Section 205 clearly lays down that the Magistrate enquiring 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 even though his appearance may have been dispensed with under Sub-section (1). It is not disputed by the petitioner's learned advocate that the Magistrate could not, in any circumstances direct the personal attendance. Hut the question involved is only whether the Magistrate is bound to enforce the personal attendance of the accused and question him in person, or whether the pleader of the accused could be questioned under Section 342 Cr. P. C.
3. Judicial opinion on this point is not uniform. In Dorabshah v. Emperor, AIR 1926 Bom 218 the question that came up for consideration was whether the court could act on the plea of guilty of an estate manager of the accused. Relying on certain English decisions which held that an accused could appear and plead by counsel or attorney, Fawcett, J., observes;
'Then again under Section 360', in a case where the accused's personal attendance has been dis pensed with, he need not even attend to hear judgment if the sentence is one of fine or he is acquitted, and if his pleader is present at the delivery of the judgment. Having regard to these provisions I think it is clear that in a case where the court has allowed an accused to appear by a pleader it must be taken that such appearance involves the performance of all acts that devolve upon the accused in the course of the trial, unless the Magistrate thinks it necessary or desirable that the accused himself should be present for any particular purpose, such as for examination by the court under Section 342 or pleading to a charge under Section 255. In such a case I cannot see any sufficient ground, in spite of the fact that Sections 242 and 243 speak ot the accused only, for holding that his pleader may not make the necessary answers and plead guilty or not guilty on his behalf.'
A reading of the judgment would show that the case would equally apply to a warrant ease. Section 242 Cr. P. C. lays down that:--
'When the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him and he shall be asked if he has any cause to show why he should not be convicted; but it shall not be necessary to frame a formal charge,'
The relevant portion of Section 342 runs thus; .
'The court.......... shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before be is called on for his delence.'
It is evident from a comparison of these two sections that stating the particulars of the offence to the accused and asking him if he has any cause to show why he should not be convicted under Section 242 are imperative as questioning the accused generally on the case under Section 342.
4. This decision has been followed by a Bench of the Bombay High Court in Emperor v. Jaffar Cassum Moosa, AIR 1934 Bom 212. It was held in that case that Section 342 must be read subject to the provisions of Section 205. 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,
5. The principle laid down in Maung Po Nyein v. Haka Singh, AIR 1927 Rang 73 is in consonance with the view taken in both the Bombay cases.
6. Similarly in the case of Emperor v. Jamal Khatun, 14 Cri. L. J. 272 (Sind), it was observed that:
'Section 205 Cr. P. C. allows the accused to appear by a pleader and such appearance involves the performance of all acts which devolve upon the accused in the course of the trial, such as answering the examination by the court under Section 342, Or pleading or refusing to plead to the charge under Section 255.'
Referring to the terms of Section 366(2) it was stated;
'The said section contemplates the absence of the accused up to the stage of judgment and even after that stage where the judgment is one of acquittal or one awarding a sentence of fine.'
7. A further support to this view was sought for in the form of summons to an accused in Schedule V, Cr. P. C. There the accused is 'required to appear in person or -by pleader.' It was observed that 'this implies that the pleader who appears represents the accused for the purpose of answering to the charge and this would include answering questions put by the Magistrate on the case made out by the prosecution.'
8. In the case of Kandamanidevi v. Emperor, AIR 1922 Mad 79 (1), it was observed that not only a Magistrate but even the Sessions Judge has power to dispense with the personal attendance of the accused and permit him to appear by pleader during the Sessions trial. In that case the trial court directed that the accused who were pardahnashin ladies should not be compelled to appear in public at least until they were convicted. In re C. M. Raghavan, AIR 1950 Mad 814, Chandra Reddy, J., as he then was, also took the same view. After reviewing the case law it was held:
'It is for the Magistrate to consider whether it is necessary to direct the personal attendance of the accused who was exempted under Section 205 for questioning him under Section 342, Omission to examine the accused under Section 342 who was permitted to appear by counsel under Section 205 and whose counsel filed a statement on his behalf does not vitiate the trial.'
9. The Madhya Pradesh High Court in Mst. Kanchan Bai v. State, AIR 1959 Madh Pra 150; has taken the same view. It was held that:
'If the personal attendance of a person has been dispensed with and he is permitted to appear by his pleader, then such appearance involves the performance of all acts which the accused is supposed to do during the course of that trial. In this view of the matter, a pleader can answer all questions put to the accused under Section 342 Cr. P. C. and the accused can also plead guilty or not guilty through his counsel. This of course does not imply that if at any subsequent stage of the proceedings, the trial court thinks that the personal attendance of the accused is otherwise necessary, it cannot direct the accused to be present in the court.'
10. In Rusi Biswal v. Nakhyatramalini Devi, AIR 1954 Orissa 65, it was held that:
'It is not obligatory on the magistrate to direct the personal attendance of the accused who has been exempted under Section 205 at any stage, including examination under Section 342.'
I am in respectful agreement with the views expressed in all these cases.
11. The learned counsel for the respondent has drawn my attention to certain decisions which hold a different view. In Ishwar Das v. Bhagwandas, AIR 1934 All 693(2), a contrary view was taken. In that case a Bench of Special Magistrates who dispensed with the presence of the accused under Section 205 Cr. P. C. directed the accused to appear in person to be questioned under Section 342. In an application in revision against that order it was laid down that ''under Section 342 it was compulsory on the part of the Magistrate to examine the accused .....' The learned Judge further stated:
'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 question asked.'
The learned Judge declined to follow the ruling of the Rangoon High Court in AIR 1927 Rang 73 and explained away the decision of the Bench of the Bombay High Court in AIR 1926 Bom 218 stating that the decision dealt with summons cases under Sections 242 and 243 and that it was entirely a different matter from the statement made under Section 342 Cr. P. C.
12. The Allahabad High Court however in a later case Ram Singh v. State, AIR 1959 All 623 had occasion to consider this question. In that case the personal attendance of the accused was exempted under Section 205(1) and they did not appear in court on any date and consequently were not examined by the court under Section 342 Cr. P. C. It was contended that failure to question the accused under Section 342 was an illegality which vitiated the trial. Relying on the decision in AIR 1934 Bom 212, Desai, J., held:
'There is nothing in the language of Section 342(1) to suggest that an accused, whose personal attendance has been exempted under Section 205(1), also must be examined after the witnesses for the prosecution have been examined. The exemption from the personal attendance contemplated by Section 205(1) is for the whole duration of the trial; it follows that an accused can be exempted from personal attendance oven on the date on which the examination under Section 342 is to take place. If is for the accused himself, if he wishes to make a statement, to appear in court; there is nothing to compel the court to summon him for the purpose of examination. It is provided in Sub-section (2) of Section 205 that the court may, in it's discretion, at any stage of the proceedings, direct his personal attendance. This discretionary provision is quite inconsistent with the idea of any obligation upon the court to direct his personal attendance for any purpose, even for the purpose ot examining him under Section 342.'
13. The Calcutta High Court in Sm, Champa. Devi v. Babulal Goenka, AIR 1950 Gal 161, after discussing an earlier decision of the same High Court held that:
'Section 342 does not govern Section 205 Crl. P. C., as it also does not govern Section 540A and in a case in which the accused is represented by a pleader in accordance with the permission granted by the court, it is not necessary to call upon the accused to be personally present to be examined under Section 342, Crl. P. C.'
14. But in a later case Dudhnath Shaw v. State, AIR 1958 Gal. 431, another Division Bench held that 'Section 342 Crl. P. C. provides for the personal examination of the accused and not any one representing him.' So there is no unanimity of opinion as far as the Calcutta High Court is concerned.
15. In Sadhu Ham v, Mst. Amar Kaur, AIR 1959 Punj 228, the Punjab High Court followed the Calcutta decision and decided that the accused must be examined in person. I have to express my respectful disagreement with the views expressed in the above cases.
16. Apart from the decisions cited above a reading of Section 205 itself according to me indicates that it is not mandatory that the accused need be examined in person in a case where his personal attendance has been exempted. Section 205 Crl. P. C. reads as follows:
'(1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused, and permit him to appear by his pleader.
2) 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 hereinbefore provided'. Under Sub-section (2) it is in the discretion of the (rial Magistrate to direct the accused to appear in person whose personal attendance is dispensed with, under Sub-section (1) of Section 205. If the intention of the legislature were to make it obligatory on the Magistrate to examine the accused himself under Section 342 even in cases where his personal attendance is dispensed with, it would not have expressed itself in the wording of Sub-section (2). It would seem that what the legislature intended was to vest the discretion in the magistrate to direct the accused to be present whenever he deems it necessary either for questioning him under Section 342 or for any other purpose. The language of Sub-section (1) of Section 205 is general and the exemption contemplated is for the whole duration of the trial, including the day on which the accused is to be questioned under Section 342. Otherwise the legislature could have easily stated in Sub-section (1) of Section 205 that the magistrate may if he sees reason to dispense with the personal attendance of the accused permit him to appear by his pleaders 'except on the day when the accused is to be questioned under Section 342'.
This was the view taken in AIR 1950 Mad 814. It is tor the magistrate to consider in each particular case whether it is necessary to direct the personal attendance of the accused who is exempted under Section 205 or Section 540 (A) to appear in court for questioning him under Section 342 of the Crl. P. C.
17. In this particular case the learned magistrate has proceeded on the basis that he has no discretion in the matter and that the provision contained in Section 342 is mandatory and that the accused must be examined in person. I hold that it is not the correct view and therefore it is now up to the magistrate to consider whether in this particular case he would Use his discretion and call upon the accused under Sub-section (2) of Section 205 to appear in court for the purpose of examination under Section 342 or question the advocate who represents him. It is represented by the respondent's advocate that the advocate who represents the accused would not have been authorised to plead on his behalf and that the advocate would have been retained only to represent him in court. Ordinarily in a case where the accused is exempted under Section 205 Crl. P. C., the accused puts in a petition authorising the advocate to plead on his behalf and answer questions under Section 342 and agrees that he would be hound by the statements made by his advocate on his behalf. I do not know whether in this particular case the accused had put in any such petition authorising the advocate to plead on his behalf, as the entire papers are not before this court. That is a matter which the learned magistrate will have to consider.
The order of the learned Sub-Divisional Magistrate is set aside. Crl. M. P. No. 409/60 is sent back to the Sub-Divisional Magistrate, Trivandrum, for fresh disposal in the light of the observations made above and after hearing the parties. Revision petition is allowed.