Patna High Court
Deolakhan Thathera vs State Of Bihar on 15 April, 1963
Equivalent citations: AIR1963PAT371, 1963CRILJ385, AIR 1963 PATNA 371, 1963 BLJR 853 ILR 44 PAT 330, ILR 44 PAT 330
JUDGMENT Anant Singh, J.
1. The main question for decision in this application is whether after the accused on his asking has been exempted from personal attendance in Court and allowed to be represented by a lawyer up to the stage of his examination under Section 342 of the Code of Criminal Procedure or for the master of that under Section 242, Criminal Procedure Code and the pleader is examined under either of the above sections in place of the accused, the non-examination of the accused himself in person will constitute an illegality so as to vitiate the trial or even an irregularity curable under Section 537 of the Code.
2. The question though differently worded, was referred to a Division Bench by a single Judge of this Court for an authoritative decision in view of some conflict of decisions on the point in different High Courts, and this is how the matter came up before us. We have also issued a rule for the enhancement of the sentence, to which I shall refer hereafter. The question arising for decision, referred to above, must be answered in the negative for the reasons I give below.
(2) There are two Sections 205 and 540-A of the Code of Criminal Procedure as amended in 1955 which provide for exemption of the accused from personal appearance in Court and his representation by a pleader.
(3) Section 205 occurs under Chapter XVII under the heading "of the commencement of proceedings before Magistrate" and it is as follows: -
"205. Magistrate may dispense with personal attendance of accused; (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 of 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".
Section 540-A occurs under the heading "Miscellaneous" in Chapter XLVT of the Code, and it is to the following effect;
"540-A. Provision for inquiries and trial being held in the absence of accused in certain cases : (i). At any stage of an inquiry or trial under this 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 inquiry or trial in his absence, and may, at any subsequent stage of the proceedings direct the personal attendance of such accused.
(3). If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately."
It will appear that the provisions of Section 205 would be attracted at the stage of the commencement of the proceedings before the Magistrate decides to issue a summons, and it is only at that stage that he is empowered to dispense with the personal attendance of the accused and permit his appearance by his pleader. If the personal attendance of the accused has been dispensed with by a Magistrate on the commencement of the proceeding, the accused might be allowed to be represented by a pleader till the conclusion of the case unless the Magistrate decides otherwise to require the personal presence of the accused at any stage of the proceeding. But in cases, where the personal attendance of the accused is not dispensed with at the initial stage of the commencement of the proceeding and a summons was issued, the Magistrate has no power in terms of Section 205 to dispense with his personal attendance after the trial has commenced after the appearance of the accused in person. The terms of Section 540-A will cover up such cases. In view of the provisions of Section 540-A it is manifestly clear that "at any stage" of an enquiry or trial the Judge or a Magistrate can dispense with the personal attendance of the accused and allow him to be represented by a pleader up to the final conclusion of the case including the examination of the accused either under Section 242 or Section 342 of the Code of Criminal Procedure, which is undoubtedly a part of the trial, unless of course, the Court at any stage of the enquiry of trial decides hi his discretion to compel the personal attendance of the accused in Court.' The discretion is with the Magistrate or Judge and if the Judge or the Magistrate 'holding the enquiry or trial does not call for the personal attendance of the accused even for his examination in person under Section 242 or Section 342 of the Code of Criminal Procedure, he is surely acting within law as provided for in Section 540-A, quoted above.
4. The examination of the accused is provided for in Section 242 in the trial of, summons case at the initial stage of the commencement of the proceeding when the accused appears or ia brought before the Magistrate and is required to plead to the substance of the accusation. Section 342 provides for the examination of the accused at any stage before the conclusion of the trial and necessarily after the conclusion of the evidence led by the prosecution. The relevant provisions of Section 342 are as follows: -
"342. Power to examine the accused; (1) For the purpose of enabling the 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 of the prosecution have been examined and before he is called on for his defence.
x x x x"
5. The object of the examination of the accused under Section 342 is only to apprise the accused of the evidence and circumstances appearing against him, and it will be noticed that after the conclusion of the evidence the accused has got to be examined and afforded opportunity to explain the evidence and circumstances appearing against him. The accused, therefore, must have to be examined after the close of the evidence by the prosecution, but the question is whether the accused must necessarily be examined himself in person even in cases where he has been exempted from personal attendance and allowed to be represented by a pleader. It is true that the word "the accused" appears in both the Sections 242-and 342, but once a provision has been made for dispensing with the presence of the accused and his representation, through a pleader instead as provided in Section 205 as also in Section 540-A it must be interpreted that the accused for the purpose of examination either under Section 242 or Section 342 would include his pleader representing him at his own request and on his own behalf.
No accused can be heard to plead any illegality or irregularity later on after he has himself sought for his exemption from personal attendance and representation by a pleader. In my opinion, therefore, there is no irregularity much less any illegality, if the accused is not examined personally but examined through his pleader who he been allowed to represent him. The discretion to compel the personal attendance of the accused is with the Judge or Magistrate and it does not choose to exercise his discretion by enforcing the personal attendance of the accused at any stage including the stage of his examination under Section 242 or 342, the accused cannot be heard to make any grievance on this score. Mr. Rahman, appearing for the petitioner, has, however, relied upon a decision of the Division Bench of the Calcutta High Court in Dudhnath Shaw v. The State, AIR 1958 Cal 431 in support of his contention that the accused cannot be permitted to be examined through his pleader under Section 342 of the Code of Criminal Procedure. A contrary view supporting the contention of Mr. Rahman has no doubt been taken in the aforesaid case, but this decision was recently overruled by a majority decision of three out of the five Judges of the same High Court constituting a Full Bench in Sm. Prova Debi v. Mrs. Fernandes, AIR 1962 Cal 203. Their Lordships followed an earlier decision of their Court in Sm. Champa Devi v. Babulal Goenka, AIR 1050 Cal 161 wherein it was held that in a case in which the accused was represented by a pleader by the permission granted by the Court, it was not necessary to call upon the accused to be personally present for his examination under Section 342, Criminal Procedure Code, this view was confirmed as mentioned before by the majority view in the aforesaid case, and a similar view has been taken by a Single Judge of the Allahabad High Court in the case of Ram Singh v. State, AIR 1959 All 623. After this case was referred to a Division Bench, the learned Single Judge, K. Sahai, J., who had referred the case, has himself since taken the same view in the case of Narain Lall Bansi Lall v. State, 1963 BLJR 88 and has held as follows:
"A Pleader, representing an accused either under an order passed under Section 205 or under an order passed under Section 54O-A can be examined under Section 242 or 342 instead of the accused." With respects, I am of the same view.
6. In my considered opinion, the examination of the accused either under Section 242 or 342 Criminal Procedure Code, through his pleader is neither an irregularity nor illegality, and it is permissible under the law, as mentioned before. In the instant case, the petitioner was represented at the trial by his pleader with the permission of the Court and the Magistrate did not ask for the personal attendance of the petitioner for his examination under Section 342; but, in his place, his pleader who had been authorised to represent him was examined. Thus, there has been no irregularity, much less, any illegality in his trial.
7. Mr. Rahman, appearing for the petitioner, has, however, repudiated the conviction of the petitioner on merits as well. Since a rule for enhancement was issued by us, he has taken us to the facts of the case as well, as provided for in Section 439 (6) of the Code of Criminal Procedure. The facts are as follows : (His Lordship then stated the facts and discussed the evidence on paras 7 and 8 and proceeded:) There is no enmity suggested ' between him and the petitioner, and there is no reason why he would falsely claim these articles as belonging to him. There was no suggestion made on behalf of the, petitioner that the articles in question that were recovered from the possession of the petitioner belonged to him. There can be no doubt that he had been keeping these articles dishonestly; and, since they were recovered from his possession only two days after the theft, will be presumed that he knew-them to be stolen goods for which he had no explanation to offer. In my opinion, he was rightly convicted of the charge. As regards the sentence, we no doubt issued a rule for enhancement, being at that time of the view, when full facts had not been placed before us, that there should have been some substantive sentence of imprisonment though it is not mandatory under Section 411 of the Indian Penal Code, but having taken into consideration that the articles recovered from the possession of the petitioner were of insignificant value, I would not consider that any substantive sentence of imprisonment is called fur. As a matter of fact, for the same reason even a fine of Rs. 1000/- is much too excessive, and I would reduce it to Rs. 200/- (Rupees two hundred), in default to one month's rigorous imprisonment. With this modification, the petition is dismissed and the rule for enhancement is discharged.
G.N. Prasad, J.
8. I agree.