CHAMPA DEVI Vs. BABULAL GOENKA

JUDGEMENT

(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, 49 C. W. N. 537 : (A. I. R. (32) 1945 Cal. 482: 47 Cr. L. J. 302), 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.