K.D. Sharma, J.
1. This is a reference made by the learned Additional Sessions Judge, Tonic with a recommendation, that the order of the learned Munsiff-Magistrate, Tonk dated 6-12-1971 directing the personal appearance of Mst. Kesar, Ladi, Kamla, Shanti and Prehladi petitioners in his Court for the purpose of their examination under Section 342, of the old Code of Criminal Procedure, be quashed and the learned Magistrate be directed to proceed with the trial of the case without recording their statements under the aforesaid section.
2. The reference arises under the following circumstances:
The petitioners along with Radhey Shyam and Satya Narain, co-accused, have been prosecuted for the offences punishable under Sections 451, 147 and 323, I. P. C. in the Court of the learned Additional Munsiff-Magistrate, Tonk on basis of a report lodged with the police by Brij Mohan S/O Ganesh Lal Mahajan, resident of Pipalu. The learned Magistrate, upon consideration of all the documents referred to in Section 173, and after giving the prosecution and the accused an opportunity of being heard, framed charges in writing against each petitioner under Sections 147, 323 and 451, I. P. C. He, however, granted exemption from personal attendance to the petitioners upon an application made to him by them in this behalf on 30-5-1967. Thereafter, the learned Magistrate recorded the prosecution evidence in the presence of the petitioners' pleader, and on 6-12-1971 directed the personal attendance of the petitioners in the Court for the purpose of their examination under Section 342, Criminal P. C. Aggrieved by this order, the petitioners filed a revision petition in the Court of the learned District Magistrate; from where it was transferred to the Court of the learned Additional Sessions Judge, Tonic vide an order dated 13-9-1972. The learned Additional Sessions Judge after hearing the parties was of the view that the object of Section 342, Criminal P. C. is to enable the accused to explain any circumstances appearing against him in the evidence, and that if the accused, whose personal attendance in the Court has been exempted, is not willing to appear in the Court for being examined under Section 342, Cri. P. C., he cannot be compelled by the Court to appear in person for the purpose of his examination. Hence, he has made this reference.
3. I have carefully gone through the record, and heard Mr. V. S. Dave for the petitioners, and Mr. G. A. Khan appearing on behalf of the State. It is not disputed be fore me that the learned Magistrate trying the case may, in his discretion at any stage of the proceeding, order the personal attendance of the petitioners for any particular purpose. Sub-section (2) of Section 205, of the old Code of Criminal Procedure empowers the Court to require the personal attendance of the accused who has been allowed to appear by Pleader, if the Court thinks it necessary or desirable that his presence is required for a proper conduct of the case. The contention of the petitioners before me is that where the personal attendance of the accused has been dispensed with, it is not obligatory on the Magistrate to enforce their personal attendance for examination under Section 342, Criminal P. C. especially when the petitioners do not want to appear in the Court for the purpose of making a statement after the close of the prosecution evidence. Mr. G. A. Khan appearing on behalf of the State on the other hand contended that the mere fact that the petitioners are Pardanasin ladies does not entitle them to claim exemption for all the time during the course of trial, even if their presence is required by the Court to enable them to explain any circumstances appearing against them in the evidence and to determine the question of their guilt.
4. I have given my anxious consideration to the rival contentions. Formerly there was a divergence of judicial opinion as to whether Section 342, Criminal P. C. enables the Court to examine the pleader if so authorised by the accused in a case where personal attendance of the accused has been exempted. But the conflict has been set at rest by an authoritative pronouncement of their Lordships of the Supreme Court in Bibhuti v. State of West Bengal : 1969CriLJ654 , wherein it has been clearly laid down that examination of pleader under Section 342, Criminal P. C. in place of accused is no substitute for the examination of the accused person, and that the personal attendance of the accused should be insisted upon for examination under the aforesaid section. It is, no doubt, true that in the present case the petitioners have made an application to the Court that they do not wish to make a statement under Section 342, Cri. P. C. and to appear in the Court for that purpose. But the mere fact that the petitioners are ladies and that they have been exempted from personal attendance in the Court during the course of trial, does not entitle them to override the discretionary power given to the Court under Sub-section (2) of Section 205, Criminal P. C. for directing their personal attendance to explain any circumstances appearing against them in the prosecution evidence and to enable itself to determine the question of their guilt or innocence. The second part of Section 342, Criminal P. C. is a mandatory provision which casts a duty upon the Court to question the accused generally on the case after the evidence of the prosecution witnesses has been recorded, and before the accused is called on for his defence. It is undoubtedly true that the accused can refuse to answer questions put to him under Sub-section (1) of Section 342, Criminal P. C. and his refusal may be taken into consideration by the Court, which may draw such inference from such refusal as it thinks just. But this fact does not entitle the accused to claim exemption from personal attendance in the Court all the time, even if his presence is considered necessary by the Court for a proper conduct of the case, and for enabling itself to get at the truth after bringing to his notice all the salient points appearing against him in the prosecution evidence. The provisions of Section 342, Criminal P. C. do not purport to be only in the interest of the accused, but their intention is to advance the cause of justice and to enable the Court to get at the truth after allowing real and adequate opportunity to the accused to explain any circumstances appearing against him in the evidence. The following observations of their Lordships of the Supreme Court in the referred to above case : 1969CriLJ654 , are quoted below to show the object of examination of an accused under Section 342, Criminal P. C.:
Sub-section (1) of Section 342 consists of two parts. The first part gives a discretion to the Court to question the accused at any stage of an inquiry or trial without previously warning him. Under the second part the Court is required to question him generally on the case after the witnesses for the prosecution have been examined and before he is called for his defence. The second part is mandatory and imposes upon the Court a duty to examine the accused at the close of the prosecution case in order to give him an opportunity to explain any circumstances appearing against him in the evidence and to say in his defence what he wants to say in his own words. He is not bound to answer the questions but if he refuses to answer or gives false answers, the consequences may be serious, for under Sub-section (2) the Court may draw such inference from the refusal or the false answer as it thinks fit Under Sub-section (3) the answers given by the accused may be taken into consideration in the inquiry or trial. His statement is material upon which the Court may act and which may prove his innocence (see State of Maharashtra v. Laxman Jairam : AIR1962SC1204 .
5. Their Lordships were further pleased to observe in para 10 of the above mentioned case that the argument from the side of an accused that if his personal attendance is not exempted and he is required to attend the Court in person for his examination under Section 342, Criminal P. C., he shall be put to hardship and inconvenience does not carry weight, because where the evidence implicating the accused has been given, his examination under Section 342, Criminal P. C. becomes necessary for having his explanation if any, if, however, the prosecution has adduced no evidence at all against the accused, and if the evidence adduced by it does not implicate him, no explanation from the accused is necessary in such case. The observations of their Lordships on this point (at page 385 of AIR : 658 of Cri LJ) are quoted below in extenso:
We are not impressed with the argument that an accused person will suffer inconvenience and harassment if the Court cannot dispense with his attendance for purposes of Section 342. The examination under the section becomes necessary when at the close of the prosecution evidence the Magistrate finds that there are incriminating circumstances requiring an explanation by the accused. If there is no evidence implicating the accused, no explanation from him is necessary and he need not be examined under Section 342. If there is evidence implicating him, it is in his interest that he should be examined personally.
5-A. Consequently, I do not feel inclined to accept the reference made by the learned Addl. Sessions Judge, Toak as no interference is called for on any reasonable ground with the impugned order of the learned Additional Magistrate, Tonk. The reference is, therefore, rejected and the case is sent back to the Court of the learned Additional Magistrate, Tonk for proceeding with the trial of the case in accordance with law.