1. This rule was issued by our learned brother Sen J. on the petition of one Srimati Champa Devi who was an accused under trial on a charge under Section 323, Penal Code, before a Presidency Magistrate of Calcutta on the com-plaint of one Babulal Goenka, the opposite party. As our learned brother thought that the rule should be disposed of by a Divisional Bench it has been placed before us under the orders of my Lord the Chief Justice.
2. The petitioner is a purdanashin lady not resident, it is said, in Calcutta. She applied to the Magistrate for permission to appear by an agent. She was rightly granted such permission by the Magistrate and wag appearing through her lawyer. Then, an application was filed before the Magistrate by the complainant opposite party asking that she should be required to attend personally to be examined under Section 342, Criminal P. C. The petition was rejected by the trying Magistrate. The complainant came up before this Court and our learned brother Sen J. was of the opinion that the order of the Magistrate should be set aside. Obviously, it appears, he was of the opinion that in view of a decision in the case of Adeluddin v. Emperor : AIR1945Cal482 , by a Divisional Bench of this Court consisting of Lodge J. and our learned brother himself, it was essential that the accused should be present at the time of the examination under Section 342, Criminal P. C. It appears that the previous petition was not with notice to the accused. When the accused came to know of it she filed the present petition and obtained this rule from our learned brother who has now sent it to a Divisional Bench as a consideration of other Divisional Bench decisions arises.
3. Under Section 205, Criminal P. C., whenever a Magistrate issues a summons he has the power to dispense with personal attendance of the accused and permit him to appear by a pleader. This is subject to two qualifications, one contained in Sub-section (2) of the same section, namely, that if the Magistrate considers the presence of the accused necessary at any stage he has got the power to direct personal attendance of the accused and even to enforce the same. It must be made clear that in the present case the Magistrate has not considered this to be necessary. The other is under Section 366, Sub-section (2) which lays down that if a Magistrate passes a judgment of conviction in which the sentence is of imprisonment, then the accused is to be called upon to attend, personally to hear the judgment even if that accused had been previously permitted to appear by an agent. There is nothing in Section 342 itself which requires the personal attendance of the accused. Section 342 is a section which offers an opportunity to the accused to explain the circumstances appearing in evidence against him which the Magistrate considers as requiring such explanation and also to say what he has got to say generally about the case. This is the basic principle of Section 342. The section also enables the Magistrate at any stage of the proceedings to examine an accused person obviously to clear up any difficulties and the section makes it incumbent upon the Magistrate to hold an examination generally on the case at the close of the prosecution case. As this is for the purpose of enabling the Magistrate to know what the accused has got to say and further to enable the accused to given an explanation it does not appear to us to furnish any sufficient reason why the accused should be compelled to be present if either the Magistrate does not think the presence of the accused necessary or the accused himself does not think that his presence is necessary to offer some explanation. The explanation may as readily be given by an agent as by the accused himself from the dock and in a majority of cases practically what happens is that the accused even when in the dock says nothing and subsequently files a written statement drawn up by a lawyer. So, we do not see why even from practical consideration there is necessity for an insistence upon the presence of the accused.
4. In the decision reported in the case of Adeluddin v. Emperor : AIR1945Cal482 , no reason was unfortunately given and the other provisions of the Code were not examined. That was a case in which one of the accused in a joint trial with other accused persons had been allowed to be represented by a pleader. Subsequently in an appeal taken against an order of conviction a point was raised that Section 342, Criminal P. C., had not been complied with as the accused had not been personally examined. It was in this connection that the question was examined under Section 540A, Criminal P. C. In such a case, on the state of authorities at that time, it could be urged that there should be an examination of the accused, but none of the previous authorities had laid down that there should be personal examination of the accused.
5. In view of the decision in the case of Abdul Rahman v. Emperor , it is very doubtful whether the decisions of the Courts as to the mandatory nature of Section 342, Criminal P. C., may not have to be thoroughly reviewed as in that decision a test had been laid down by the Judicial Committee to decide whether violation of a particular provision of the law would altogether vitiate the trial or be a curable irregularity if there is no failure of justice. Whatever may be the state of authorities under Section 342, Criminal P. C., there is no case in which, except that reported in Adeluddin v. Emperor : AIR1945Cal482 , referred to above, it has been held that absence of a personal examination of an accused when he is represented by a pleader is also a violation of Section 342. Where Section 342 speaks of an accused, it must be taken, if the accused is represented by a pleader, that the accused means the accused as represented by his pleader. We are unable to agree with the opinion that even under Section 540A the appearance of an accused person represented by a pleader is essential for his examination under Section 342, Criminal P. C. We hold that Section 366, Sub-section (2) governs both Sections 504A and 205 but Section 342 governs neither.
6. We would have referred this matter to a Full Bench as, in our opinion, the decision in the case of Adeluddin v. Emperor : AIR1945Cal482 is not correct, but in the present case it is not necessary to do so because this is not a case in which one out of several accused persons was allowed under Section 540A to be represented by a pleader. In the present case, the permission was granted under Section 205, Criminal P. C., as we have pointed out, and we have pointed out that in the Criminal Procedure Code there are two provisions for ordering subsequent personal attendance of the accused after an order dispensing with such attendance has been previously passed under Section 205 of the Code. Neither of these two applies in the present case. As far as the authorities are concerned, the cases of this Court reported in In the matter of Kiran Chandra, 6 C. W. N. lix, Devendra Nath v. Narendra Nath, 14 C. W. N. cxxxi and Raj Rajeshwari Devi v. Emperor, 17 C. W. N. 1248: (23 I. C. 489 : 15 Cr. L. J. 281), clearly support what the Magistrate did in dispensing with the personal appearance of the accused in the present case at the initial stage. All these decisions have been reviewed by us in a case recently in the Divisional Bench, as yet unreported, the case being Cr. Revn. No. 543 of 1949. There is a decision fully applicable to the present case of a Divisional Bench reported in In re Sukhalata Gupta, 21 C.W.N. clxviii, in which the Divisional Bench dispensed with the personal attendance of the accused until the conclusion of the trial and directed that a plea be taken through her pleader and in case she files a written statement the same may be accepted as embodying her plea. In our opinion, the order passed in that case was correct and the same procedure should have been followed in the present ease.
7. This view receives support also from such a high authority as Sir John Beaumont in a a decision reported in Emperor v. Jaffar Kassum, 35 Cr. L. J. 1035 : (A. I. R. (21) 1934 Bom. 212). In that case in which it was said that want of personal examination of an accused allowed to be represented by a lawyer vitiated the trial, the High Court of Bombay held that Section 205 was not controlled by Section 342, Criminal P. C. and the trial was not vitiated in any way. This is also the view of a Divisional Bench of this Court as we have already pointed out.
8. We, therefore, hold that Section 342 does not govern Section 205, Criminal 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, Criminal P. C. The Magistrate, therefore, in the present case acted rightly in refusing the application of the complainant opposite party and in dispensing with the presence of the accused petitioner even at the time of the examination under Section 342, Criminal P. C.
9. The result, therefore, is that the rule is made absolute and the order passed in Cr. Revn. No. 590 of 1949 set aside.