J.P. Mitter, J.
1. This Rule, which has been referred to us by a learned Single Judge, involves the question whether a Court has jurisdiction to dispense with the personal examination of an accused under Section 342 of the Code of Criminal Procedure, when he has been permitted under Section 540A of the Code to he represented by a pleader. In this case, petitioner No. 2 Kanai La! Shaw was allowed to be represented by a lawyer. In the absence of the petitioner, his lawyer was examined under Section 342. Curiously enough, the Order Sheet contained the following endorsement:
'Examined the accused under Section 342 of the Code of Criminal Procedure.' Learned Counsel for the petitioner has contended that the failure to examine the said accused Kanai Lal Shaw under Section 342 of the Code of Criminal Procedure vitiated the trial. In our view, this contention is well-founded.
2. In our view, the provisions of Section 342 of the Code of Criminal Procedure are mandatory. We are also of the view that the section provides for the personal examination of the accused and not any one representing him. This view is supported by the case of Adeluddin v. Emperor : AIR1945Cal482 , a Bench decision of this Court, as well as by the unreported case of Ram Chandra Agarwala v. The State, Cri. Revn. No. 1287 of 1953 (Cal) (B), also a Bench decision. In the case of Champa Debi v. Babulal, : AIR1950Cal161 , Chunder and Guha, JJ. took a different view. In Criminal Revn. No. 1287 of 1953 (Cal (B), I and Sen, J. took the view that the case of Adeluddin v. King Emperor (A), had been rightly decided and the case of Champa Debi v. Babulal (C) had been wrongly decided and referred the point involved to a Full Bench for decision. The Full Bench constituted for the purpose took the view that thequestion did not strictly arise out of the facts as then ascertained and remitted the case to the Criminal Division Bench. Though deprived of the benefit of a Full Bench decision on the point, it is also the view of this Bench that the language of Section 342 of the Code of Criminal Procedure clearly provides for the personal examination of an accused. That being so, we would set aside the conviction of each of the petitioners and order a retrial upon the same charge.
Debabrata Mookerjee, J.
3. I agree. The reference in some of the decisions of this Court to the provisions of Sections 205 and 540-A of the Code of Criminal Procedure, in determining the true intention of the legislature as to whether the accused person has to be examined personally under Section 342 of the Code of Criminal Procedure, does not appear to me to be either necessary or appropriate. Section 205 of the Code merely provides that 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. But Sub-section (2) of that section makes the position plain. It provides 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 his attendance in manner provided in the Code. It follows that although the legislature gave a discretion to the Magistrate issuing process, it empowered him expressly at the same time to enforce the attendance of the person complained against at any stage of the proceedings. Section 540-A as now amended, provides that at any stage of an enquiry or trial under the Code, if the Judge or Magistrate is satisfied for reasons to be recorded that the personal attendance of the accused before the Court is not necessary in the interests of justice, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such enquiry or trial in his absence and may. at any subsequent stage of the proceedings, direct the personal attendance of such accused. This section appears in a chapter of the Code dealing with miscellaneous matters while Section 205 appears in the chapter relating to the commencement of proceedings before a Magistrate. Section 342, it is instructiveto note, occurs in the chapter relating to the general provisions as to enquiries and trials. There can, therefore, be no doubt that the provisions contained in this chapter were intended to prevail and to govern enquiries and trialsgenerally. As I have said, there is nothing in Section 205 or in Section 540-A of the Code which can encourage the view that the Court can dispense with the attendance of the accused even for purposes of examination under Section 342 of the Code. The two sections (Sections 205 and 540-A) contain express provisions on the contrary for directing whenever necessary the presence of the accused in the course of the trial. Indeed, it becomes necessary to do so when the time comes to examine the accused. How, in these circumstances, Section 205 or Section 540-A of the Code can have any real relevance in deciding the question as to whether personal attendance of, the accused under Section 342 of the Code can be dispensed with, is indeed difficult to appreciate.
4. Turning to Section 342 itself, it seems to me clear that the provisions read as a whole cannot lend countenance to the view that examination of an agent of the accused was contemplated and that such examination can serve the purpose which was sought to be achieved by enacting that section. The section imposes a duty on the Court to give the accused an opportunity of explaining the circumstances appearing in the evidence against him and the Court may put such questions as it considers necessary without previously warning the accused. I imagine, the legislature would not have used the words 'without previously warning the accused' unless it had clearly in mind that the questions should be put directly to the accused and not to his lawyer or his agent. Nay more; the accused is immune from punishment for refusing to answer or for giving false answers. Will the immunity extend to his agent
5. That a vicarious examination of an accused was not the true purpose of Section 342 of the Code was very forcefully explained by Rankin, J., in the case of Promotha Nath Mu-khopadya v. The King Emperor, 27 Cal W. N. 389 : (AIR 1923 Cal 470) (D). That was a case which came up before a Bench of two Judges who, however, differed and the matter was laid for the decision of a third Judge. Rankin J., as he then was, said :
'the intention of the statute is that at acertain stage in the case, the Court itself shallput aside all Counsel, all pleaders, all witnesses,all representatives, and shall call upon an individual accused with the authority of theCourt's own voice to take advantage of the opportunity which then arises to state in his ownway anything which he may be desirous of stating. In the case of an accused who is in nodifficulty in understanding the proceedings, aquestion addressed to his Counsel in his hearingand answered by his Counsel in his hearing mayperhaps be taken in certain circumstances asa compliance with the section. It is not a fullcompliance with the section, but I say nothingwhatever to create any more trouble than inabsolutely necessary in any case of that character. What is necessary is that the accused shallbe brought face to face solemnly with an opportunity given to him to make a statement fromhis place in the dock in order that the Courtmay have the advantage of hearing his defenceif he is willing to make one with his own lips.'I respectfully agree and would prefer to followthese weighty observations and take them astruly indicating the purpose of examination ofan accused under Section 342 of the Code of Criminal Procedure.