I.N. Modi, J.
1. This is a revision by Mst. Kusuma Devi against an order of the Additional Sessions Judge, Jaipur City, dated 22nd March, 1963. Upholding an order of the City Magistrate, Jaipur, dated the 28th May, 1962, directing that she should appear in Court for being examined in a proceeding under Section 107, Cri. P. C.
2. It appears that on the application of respondent Thakur Govind Singh, a case was registered under Section 107, Cri. P. C. against the petitioner and her husband in the Court of the City Magistrate, Jaipur. The petitioner was admittedly exempted from personal attendance in Court and was permitted to appear by a pleader under Section 116, Cri. P. C. After the evidence of the opposite party, who was the petitioner in the trial Court was concluded, the Magistrate adjourned the case for the examination of the petitioner and for his evidence. An application was moved on behalf of the petitioner here that the provisions of Section 342, Cri, P. C. were not applicable to an inquiry under Section 117, Cri. P. C. and consequently her presence in Court need not be insisted upon and that in any case her counsel be examined in place of her. The learned Magistrate rejected this prayer. The petitioner than went in revision to the learned Additional Sessions Judge, Jaipur City, who upheld the order of the trial Court and this is how the present revision has been filed.
3. Learned counsel for the petitioner strenuously contends before me that the order of the Courts below was incorrect and therefore deserves to be quashed. His principal submission is that the provisions of Section 342, Cri P. C. cannot in terms be applied to an inquiry under Section 117. Learned counsel has invited my attention to Binode Behari v. Emperor, AIR 1924 Cal 392 which was followed in Kartick Chandra v. Panna Lal, AIR 1958 Cal 140. It may be pointed out at once that as I look at these cases, they are entirely distinguishable from this facts of the present case. In both of these cases, the persons sought to be proceeded against under Section 107, Cr. P. C. were not examined at the stage of the enquiry at all and consequently they raised a complaint before the High Court that they should have been examined and that that having not been done, the entire inquiry was vitiated. This plea was repelled, a view having been taken that Section 342 was not applicable to an inquiry under Chapter VIII of the Code of Criminal Procedure, and that, in any case, it was a curable irregularity, and no prejudice having been caused to the persons sought to be proceeded against, there was no ground for quashing the inquiry. The point to notice is that in these cases, the grievance was raised by the accused at a late stage, that is, after the inquiry was over and their grievance was rejected as untenable because no prejudice had been caused to them, and, further-more, it was held that the irregularity was curable. The position in the case before me is entirely different. It is the Magistrate here who wishes to examine the petitioner at the close of the evidence for the prosecution and the petitioner who was the respondent in the trial Court is resisting this procedure.
4. Now, as I look at the matter, the procedure governing an inquiry of this nature is laid down in Sub-section (2) of Section 117, Cri. P. C. It reads as follows:
'Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trials and recording evidence in summons cases.'
A proceeding under Section 117 initiated under Section 107 is certainly an inquiry and I am far from equating it with a trial. What I do maintain, however, is that the law has laid down a procedure for such inquiries and it clearly says that the procedure for making such an inquiry should 'as nearly as may be practicable' be the same as for conducting trials (and recording evidence) in summons cases. The phrase 'conducting trials' is a very comprehensive one and it does not appear to me that these words in the cases which are relied on for the contrary view have been given the importance which they deserve. The examination of an accused in a summons case is part of a trial and it clearly seems to me, therefore, that the Code of. Procedure does contemplate that the person arraigned under Section 107 should also be examined before a final order is passed against him.
I am fully aware that Sub-section (2) of Section 117 uses the phrase 'as nearly as may be practicable' while laying down that the procedure in the case of such an inquiry would be the procedure for conducting trials in summons cases. But nothing has been shown to me, nor do I know of any valid consideration, why it should be held to be otherwise than practicable that the person sought to be proceeded against cannot or need not be examined in the course of such an inquiry. With all respect, therefore, I am extremely doubtful of the validity of the view that Section 342 is not attracted in such cases. To my mind, it is not attracted by virtue of anything contained in the section itself but it is attracted because of the provision contained in Sub-section (2) of Section 117, and in this view of the case it is not at all to the point to say that the person sought to be proceeded against in a proceeding under Section 107, Cri. P. C, is not an accused. I hold accordingly.
5. Once I come to this conclusion, I am further strongly of the opinion that there can be no substitute for the examination of the accused himself or herself at the stage at which he or she has to be examined. A pleader's examination on his or her behalf is and would be a very poor substitute for the examination of the arraigned person himself or herself. In these circumstances, I am disposed to hold the view that there is nothing wrong in the Magistrate cailing upon the petitioner to put in her, appearance in his Court for the purpose of her examination. I am informed that the Magistrate has already agreed to examine her in his chambers and that is as far as one can go in a matter like this but no more.
6. In the result, this revision fails and is hereby dismissed.