A.K. Das, J.
1. This application in revision is directed against an order convicting the petitioners for an offence under Section 6(a) of the Indian Passport Rules.
2. What happened is as follows: The petitioners crossed into the Indian territory on January 12, 1964, from East Pakistan and they were arrested 'by the police asthey had no valid passport. Upon this allegation they were placed for trial before a learned Magistrate. They were eventual found guilty and convicted under Section 3(3) of the Indian Passport Act and sentenced to pay a fine of Rs. 500 each, in default to suffer rigorous imprisonment for six months each.
3. There was an appeal from the order of the learned Magistrate and the learned Additional Sessions Judge of Murshidabad up-held the conviction but under Rule 6(a) of the Indian Passport Rules, he reduced the sentence of imprisonment in default of payment of fine to three months only.
4. The petitioners when examined under Section 242 Cr. P.C pleaded not guilty. Thereafter after on THE date fixed they were allowed to be represented under Section 540A Cr. P.C. by a lawyer. The learned Magistrate then examined the prosecution witness. Thereafter he examined the lawyer For the petitioners under Section 342 Cr. P.C. to which he pleaded guilty. The learned Magistrate accepted the plea and convicted the accused persons The relevant portion of the order may conveniently be set out below:
'14-7-64. Aeed. Abdul Kashem and Rahaman absent by petition. They are allowed to be represented under Section 540 Cr. P.C. Accused Jan Mohammad present. Examined 1 P.W. in full. He is discharged Examined accused Jan Md. and lawyer for Abdul Kashem and Rahaman under Section 342 Cr. P.C. They plead guilty. I accept the plea of guilty and convict the accused persons accordingly. I sentence each of the accused to pay a fine of Rs. 500 each, i.d. to suffer r.i. for 6 months.'
5. Mrs. Mukti Maitra, learned advocate for the petitioner has urged that the lawyer had HO authority to plead guilty and a conviction on this plea of guilty by the lawyer is therefore bad She has also urged that for the purposes of examination under Section 342 Cr. P.C. the learned Magistrate ought to have summoned the accused persons themselves to be present. The question has by now been settled by a Full Bench decision of this Court reported in : AIR1962Cal203 (Sm. Prova Devi v. Mrs. Fernandes in Full Bench Reference No. 1 of 1961). It was held there that where a Magistrate has permitted an accused to be represented by a pleader under Section 205(1) or under 540-A. he is not bound to compel the appearance of fee accused for examination tinder Section 342 Cr P C he may exercise his discretion in the mailer and examine the pleader of the accused on his behalf. The learned Magistrate was therefore perfectly justified in examining the lawyer representing the accused person under Section 342 Cr. P.C and his exercise of discretion not to call the accused persons for the purpose of examination under Section 342 Cr. P.C. cannot be assailed.
6. The next question urged by Mrs. Mukti Maitra is that in the present case evidence was taken, and as such, the learned Magistrate ought to have delivered a judgment after taking into consideration the evidence onthe record. The present case has its peculiar features. The petitioners who are the accused persons before the learned Magistrate when personally examined under Section 242 Cr. P.C. pleaded not guilty Thereafter one witness was examined in full and the lawyer representing the petitioners was examined under Section 342 Cr. P.C. and he pleaded guilty. The learned Magistrate at once accepted the plea and convicted the petitioners and the order recorded does not give any indication that the learned Magistrate applied his mind and was satisfied that an offence was committed. It has been repeatedly pointed out that even though the accused persons plead guilty, it is always the learned Magistrate's duty to see if any offence under the law is committed. In the present case evidence of one prosecution witness has been recorded and the learned Magistrate therefore ought to have taken hi' evidence into consideration in deciding whether any offence under the law was committed at all. This was incumbent on the Magistrate in view of the fact that the petitioners when examined under Section 242 Cr. P.C. pleaded not guilty and the plea of guilty was made by the lawyer when examined under Section 342 Cr. P.C., after one witness was examined and cross-examined. The manner in which the learned Magistrate accepted the plea under Section 342 Cr. P.C and when convicted the accused, without taking the evidence into consideration or even ascertaining whether any offence under the law has been committed, cannot be supported and this order must be set aside
7. It is however time to consider whether a Magistrate can accept the plea of guilty in course of examination under Section 344 Cr. P.C. and convict the accused There is an essential difference between the wording of Sections 242 and 342 Cr. P.C. The relevant portions of Sections 242 and 342 are set out below.
Section 242--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 bas any cause to show why he should not be convicted: but it shall not be necessary to frame a formal charge.
Section 342--For the purpose of enabling fee accused to explain any circumstances appearing in the evidence against him the Court may, at any stage of any inquiry or trial, without previously warning the accused, put such questions to him as the Court considers necessary, and 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.
The examination under Section 242 is made before evidence is taken and at this stage, the trial court has nothing to consider except the statement made The accusation is explained to him and the accused is asked if he has any cause to show why he should not be convicted. Thereafter, if instead of showing cause he pleads guilty, the Magistrate may accept theplea and convict him provided that the accusations make out an offence under law. The learned Magistrate at this stage has no material to consider excepting this statement as the statement is recorded when the accused is brought before him for trial. The accused however is examined under Section 342 after prosecution witnesses are examined and before he enters defence. The object is to enable the accused to explain any circumstance appearing in the evidence against him, unlike that in Section 242 Cr. P.C. where he is asked if he has any cause to show why he should not be convicted. The scope of such examination under Section 342 is very wide and the Courts have repeatedly pointed out that such examination is not an idle formality. The object being to enable the accused to explain any circumstance appearing in evidence against him and such examination having come after the recording of evidence, even if there is a plea of guilty, the Magistrate cannot mechanically accept it and convict him without taking into consideration the evidence recorded. Sub-section (3) of Section 342 provides that the answer given by the accused nay be taken into consideration in such enquiry or trial and Sub-section (2) provides that the court may draw such inference from the answers as it thinks just The result, in my view, would be that the Magistrate even on a plea of guilty under Section 342 cannot rely upon such plea and proceed to convict. He has to take the evidence into consideration as also the plea under Section 342 Cr P.C and he may draw such inference from the answers as he thinks just. An order of conviction based on answer to questions put in examination under Section 342 Cr. P.C. without delivering a judgment proved upon consideration of the evidence on record is bad in law and cannot be supported. That being the position, the conviction and sentence passed by the learned Magistrate must be set aside and he must be directed to apply his mind to the evidence and other materials on record and then take a decision according to law.
8. The Rule is made absolute. Send down the record at once.