KARANJIA Vs. CHELLAPPAN PILLAI

JUDGEMENT

(1.) THE Revision Petitioner R. K. Karanjia, Editor of Blitz, Bombay is the accused in a case of defamation filed by the respondent. On an application by him, his personal attendance was exempted during the course of the trial under Section 205 Cr. P. C. After the evidence for the prosecution was recorded, the case stood posted to 14-4-1960 for further proceedings. On that day the petitioner was not present in court. His advocate presented a petition stating that as the personal attendance of the petitioner had been exempted his presence need not be insisted upon for his examination under Section 342 Cr. P. C. The learned Magistrate heard the parties and passed an order that the examination of the accused under Section 342 would mean the examination of the accused in person and not through his 'mukthyar' or pleader and directed the accused to appear in person on the next hearing date. The Petitioner's advocate has come up in revision against the above said order. In para 3 of the petition, it is stated that the petitioner is in Europe as a Journalist to cover the Commonwealth Conference and later the Summit talks and it would be very hard if he is directed to return and appear in court before the close oi his professional work in foreign countries. The only question involved in this petition is whether an advocate of the accused who is exempted under Section 205 Cr. P. C. , could be examined under Section 342 Cr. P. C. , or whether it is mandatory that the accused should be examined in person.

(2.) IT is true that a person who is exempted from personal attendance under Section 205 cannot claim as a matter of right that he should not be ordered to appear personally in court at a later stage. Sub-section 2 of Section 205 clearly lays down 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 such attendance even though his appearance may have been dispensed with under Sub-section (1 ). It is not disputed by the petitioner's learned advocate that the Magistrate could not, in any circumstances direct the personal attendance. Hut the question involved is only whether the Magistrate is bound to enforce the personal attendance of the accused and question him in person, or whether the pleader of the accused could be questioned under Section 342 Cr. P. C.

(3.) JUDICIAL opinion on this point is not uniform. In Dorabshah v. Emperor, AIR 1926 Bom 218 the question that came up for consideration was whether the court could act on the plea of guilty of an estate manager of the accused. Relying on certain English decisions which held that an accused could appear and plead by counsel or attorney, Fawcett, J. , observes;