Chandra Reddy, J.
1. This reference made by the Sessions Judge of North Malabar raises the question whether omission to examine the accused under Section 312, Criminal P. C., who was permitted to appear by counsel under Section 205, Criminal P. C., and whose counsel filed a statement on his behalf vitiates the trial.
2. The accused in the cage was charged under Section 323, Penal Code, before a Bench of First Class Magistrates. In the course of the trial accused 1 was granted exemption from personal attendance under Section 205 Criminal P. C., as he was employed as a Havildar Clerk at Bombay. The Bench Magistrates believed the prosecution evidence that accused 1 along with accused 2 caused simple hurt to P. W. 1 and convicted the accused of an offence under Section 323, Penal Code.
3. Both the accused filed a revision petition before the Sessions Judge against the conviction and sentence passed upon them by the First Class Bench, contending that the conviction of the petitioners was illegal as accused 1 was not questioned under Section 342, Penal Code. Accepting the contention of the petitioners the Sessions Judge has made this reference recommending the quashing of the conviction of the petitioners.
4. In support of the view that the non-examination of the accused under Section 342, Criminal P. C., vitiates the trial and that the accused are therefore entitled to an acquittal he relies on a number of decisions which I will presently refer to.
5. Reference is made to Nataraja v. Deva-sigamani : AIR1931Mad241 It has been laid down in that cage by Sundaram Cheeti J. that failure to examine the accused under Section 342, Criminal P. C. after examination of the prosecution witnesses and before he is called upon to enter his defence vitiates the trial, as the provisions of Section 342, which are mandatory should be strictly complied with. It has also been held that what is contemplated under Section 342 is the oral statement of the accused and the filing of the written statement after the closing of the prosecution evidence does not amount to an examination within the meaning of Section 342, Criminal P. C.
6. In Promatha Nath v. Emperor, 50 Clause 518: A.I.R. 1923 Clause 470: (1923) Cri. L. J. 248 it has been held that non-compliance with the provisions of Section 342, Criminal P. C., vitiates the trial even when the accused is not in any way prejudiced and that it is the duty of the Magistrate to examine the accused under Section 342, Criminal P. C., after the examination, cross-examination and re-examination of the prosecution witnesses.
7. This decision is based upon a ruling of a Bench of that Court in Mozahur Ali v. Em-peror, 50 Clause 223: A.I.R. 1923 cal. 196: (1923) Cri. L. J. 198 of the same report Rankin J. observes:
'In the case of an accused, who is in no difficulty in understanding the proceedings, a question addressed to his counsel in his hearing and answered by his counsel in his hearing may perhaps be taken in certain circumstances as a compliance with the section. It is not a full compliance with the section, but I say nothing whatever to create any more trouble than is absolutely necessary in any case of that character.'
In Re: Nainamalai Konan, 14 M. L. W. 418, A. I. R. 1921 Mad. 679, it is stated that an omission to question the accused generally on the case after the prosecution witnesses were examined makes the conviction of the accused illegal and a written statement filed by the accused cannot be substituted for the examination of the accused under Section 342, Criminal P, C., which is mandatory.
8. In Mahomed Hussain v. Emperor, 41 cal. 743; A. I. R. 1914 cal. 663: (1914) Cri. L. J. 190 it has been laid down that Section 263, Criminal P. C., is governed by Section 342 and that there must be an examination of the accused in all warrant cases and that the words 'if any' in Section 263 do not apply to warrant cases.
9. In Karamdin v. The Crown, 15 Lah. 60 : A.I.R. 1934 Lah 96: (1934) Cri. L. J. 1394. Tek Chand J. laid down that Section 342, Criminal P. C., would apply to summons cases also and that non-compliance therewith would be fatal to the trial of the case.
10. It must be observed that none of these cases deals with the question whether failure to examine the accused under Section 342, Criminal P. C. vitiates the trial when his presence is dispensed with under Section 205. Criminal P. C.
11. Another decision referred to in the order of reference is the one in In re Annamalai Mudali, I. L. R. (1940) Mad. 514 : A. I. R. 1940 Mad. 372 : (1940) Cri. L. J. 853. In that case it has been laid down by a Bench of this Court that every failure to comply strictly with the provisions of Section 342, Criminal P. C. does not render the conviction of the accused illegal unless it has in fact occasioned a failure of justice and that Section 537 of the Code cures such an irregularity. It is also stated there that it is the duty of the Court to satisfy itself that the accused explains or has an opportunity to explain the circumstances from which an adverse inference could be drawn against him either through his statements or by answers to questions or by both.
12. In this connection it would be useful to refer to a judgment of their Lordships of the Judicial Committe in Kotayya v. Emperor, I. L. R. (1948) Mad. 1 : A. I. R. 1947 P. C. 67 : (1947) Cri. L. J. 533. In that case one of the questions that had to be considered by their Lordships was whether the breach of the proviso to Section 162, Criminal P. C. would result in the trial becoming invalid when the accused was not prejudiced in any way. Their Lordships answered it in the negative.
13. Dealing with the contention of Mr. Pritt, learned counsel for the accused based upon certain rulings, one of which was in In re Maruda Muthu Vannian, 45 Mad. 820 : A. I. R. 1922 Mad. 512 : (1922) Cri. L. J. 124, which laid down, that failure to examine an accused after further cross-examination of the prosecution witnesses, even though he was examined before the framing of the charge, was fatal to the validity of the trial and that Section 597 of the same Code would not cure such an irregularity, their Lordships stated that that argument was based upon too narrow a view of the operation of Section 537.
14. It is clear from the last two decisions that it is not every case of non-compliance with the provisions of Section 342, Criminal P. C. that vitiates the trial leading to the quashing of the conviction of the accused person.
15. The only decision referred to by the Sessions Judge in this case which has a direct bearing on the present case is the one reported in Ishwar Das v. Bhagwan Das : AIR1934All693 . The ruling in Adeluddtn v. Emperor : AIR1945Cal482 , referred to by the Sessions Judge has not much bearing on the question to be decided in this case.
16. No doubt the ruling in Ishwar Das v. Bagwandas : AIR1934All693 , supports the case for the reference. In that case a Bench of Special Magistrates who dispensed with the presence of the accused under Section 205, Criminal P. C. directed the accused under Section 205 (2) of the Code to appear in person to give an explanation under Section 342 of the Code. In an application in revision against that order it was laid down by a Single Junge of the Allahabad High Court that under Section 342 it was compulsory on the part of the Magistrate to examine the accused for the reason, that the provision of law was in furtherance of justice and to enable the Court to decide the issue in a criminal case. He also stated that:
'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 who decided that case declined to follow a ruling of the Sangoon High Court in Maung Po Neyin v. Haka Singh A. I. R. 1927 Rang. 73 : 28 Cri. L. J. 226, which holds the contrary view and explained away a decision of a Bench of the Bombay High Court in Dorabshah v. Emperor : AIR1926Bom218 , stating that the decision dealt with summons cases under Sections 242 and 343 and that it was entirely a different matter from the statement made under Section 342, Criminal P. C.
17. For the reasons to be stated presently I express my respectful disagreement with this view of the learned Judge.
18. In Dorabshah v. Emperor : AIR1926Bom218 , the question that arose for consideration was whether the Court could act on the plea of guilty of an estate manages of the accused. One of the principles laid down in that case was that where the Court had dispensed with the personal attendance of the accused under Section 205, the Court could act on the plea given by his counsel in a summons case. In reaching that conclusion the learned Judges relied on a number of English decisions in which under similar circumstances it was held that an accused could appear and plead by counsel or attorney. In the course of the judgment it was observed at page 219 by Fawcett J. :
'Then again under Section 366, in a case where the accused's personal attendance has been dispensed 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 265. In such a case I cannot see any sufficient ground, in spite of the fact that Sections 242 and 243 speak of the accused only, for holding that his pleader may not make the necessary answers and plead guilty or not guilty on his behalf.'
Referring to a statement of law made by Batty J. in Emperor v. Sursing, 6 Bom. L. R. 861: Cri. L. J. 939 the learned Judge (Fawcett J.) observed that in that particular case the accused was present at the time when the pleader gave his plea and that it was a different case from the one he had before him and that the dictum of Batty J., was too widely expressed if it was meant to apply to a case falling under Section 205, Criminal P. C. A careful reading of this judgment leaves no doubt in my mind that this case would equally apply to a warrant case also and there is no force in the distinction sought to be made by Bennet J., in Iswar Das v. Bhagwan Das : AIR1934All693 .
19. Section 242, Criminal 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 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 he is called on for his defence.'
It is evident from a comparison of both the provisions of law that stating the particulars of the offence to the accused and asking him if be has any cause to show why he should not be convicted under Section 242 are as imperative as questioning the accused generally on the case under Section. 342.
20. I, therefore, think that the decision in Dorabashah v. Emperor : AIR1926Bom218 , applies with equal force to warrant cases also.
21. The principle enunciated in this case was followed by a Bench of the Bombay High Court in Emperor v. Jaffar Cassamusa, : AIR1934Bom212 . It was laid down in that case that where the Magistrate dispensed with the personal attendance of the accused who is permitted to appear by counsel he need not question the accused personally under Section 342 which must be read subject to the provisions of Section 206. With respect, I agree with the view taken by the learned Judges in this decision.
22. The principle laid down in Maung Po Neyin v. Hoka Singh, A.I.R. 1927 Ring. 73 : (1927) Cri. L. J. 226, is in consonance with the view taken in both the Bombay cases.
23. Apart from the decisions cited above, an examination of the provisions of Section 205, Criminal P.C., leads me to the same conclusion. Section 205, Criminal P. C., is in the following terms :
'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 herein before provided.'
Under Sub-section (2) it is in the discretion of the trial Magistrate to direct the accused to appear in person whose personal attendance is dispensed with under Sub-section (1) of Section 205. If the Legislature intended to make it obligatory on the part of the trial Magistrate to examine the accused under Section 342 even when his personal attendance was dispensed with, it would not have expressed itself in the wording of Sub-section (2). It looks to me that the intendment of Sub-section (2) is to vest the discretion in the Magistrate to direct the accused to be present whenever he thinks it necessary either for questioning him under Section 342 or for any other purpose. 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, Criminal P. C., for questioning him under Section 342 of the Code, and if he does not insist on the appearance of the accused in Court for that purpose, the trial cannot be rendered illegal.
24. I, therefore, hold that failure to examine the accused personally as required by Section 312, Criminal P. C., does not vitiate the trial when his personal attendance is dispensed with under Section 205, Criminal P. C., so there is no illegality in the trial of the case which entitle:; the accused to an acquittal.
25. For these reasons, the reference cannot be accepted. The papers are returned.