SADHU RAM Vs. AMAR KAUR

JUDGEMENT

(1.) THE facts in this revision petition which has been referred to this Court by the sessions Judge at Gurdaspur are that the petitioner instituted a complaint under s. 323, Indian Penal Code, against Guranditta Mal, his wife Amar Kaur and his daughters Kailash Kumari and Rama Kanta. The case is being tried by a 3rd class magistrate who passed an order early in the proceedings under S. 205, Criminal procedure Code, dispensing with the personal attendance of the three female accused who were permitted to appear through a pleader. At the conclusion of prosecution evidence the Court examined the pleader on behalf of these three accused under Section 342, Criminal Procedure Code. The complainant then applied that these accused should be called on to appear in person for examination under Section 342. The application was dismissed by the learned Magistrate and the complainant approached the Sessions Judge in revision with the result that it has been recommended that the female accused should be examined in person under Section 342, Criminal Procedure Code. The provisions of Section 205, Criminal Procedure Code, read-

(2.) SOME of these cases appear to have been cited before the learned Sessions judge who, however, has based his recommendation on a later decision of the calcutta High Court by J. P. Mitter and Pebabrata Mookerjee JJ. , in Dudhnath Shaw v. The State, AIR 1958 Cal 431. la that case thequestion whether the personal examination under Section 342 of an accused, whose personal attendance had been dispensed with under Section 540a, Criminal Procedure Code, could also be dispensed with was referred to a Division Bench and the learned Judges, who have written separate judgments, have held that Section 342, Criminal Procedure Code, provides for the personal examination of the accused and not anyone representing him. The provisions are mandatory and the Court has no jurisdiction to dispense with the personal examination qf an accused when he has been permitted under section 540a to be represented by a pleader and there is nothing in Section 205 or in Section 540a of the Code to encourage a contrary view. In the judgment of J. P. Mitter J. , some previous decisions of the Calcutta High Court in support of this view are cited, and the case which I nave mentioned above was referred to, it being pointed out that a later Division Bench had dissented from the view expressed therein and had caused a reference to be made to a Full Bench, but the matter was not decided by the Full Bench because it was held that the question did not strictly arise out of the facts of that particular case. In the course of his judgment Debabrata Mookerjee J. , has referred to the provisions of Section 205 and Section 540a which permits the personal attendance of an accused to be dispensed with at any stage of an inquiry or trial 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, and has pointed out that while Section 205 occurs in the Chapter relating to the commencement of proceedings before a Magistrate, and Section 540a appears in a chapter headed 'miscellaneous', Section 342 occurs in the Chapter relating to the general provisions as to inquiries and trials. He continues-"there can, therefore, be no doubt that the provisions contained in this chapter were intended to prevail and to govern inquiries and trials generally. As I have said, there is nothing in Section 205 or in Section 540a 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 540a) 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 540a 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.

(3.) ON the whole I am of the opinion that die view expressed in this, the latest decision of Calcutta High Court, is correct. It was argued before me that in certain cases it was not even necessary for an accused person to attend personally on the delivery of judgment as provided in Section 366 of the Code, Sub-section (2) of which reads" 366 (2) The accused shall, if in custody, be brought up or, if not in custody, be required by the Court to attend, to hear judgment delivered, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted, in either of which cases it may be delivered in the presence of his pleader. " To my mind this does not advance the argument at all, since it merely embodies certain limited exceptions to the general rule that an accused must be present when judgment is delivered. Indeed, the fact that such a provision has been incorporated in the law seems to me rather to strengthen the argument to the contrary. Section 342, apart from giving the Court the power to put any question at any time to the accused, imposes on it a duty to question the accused fully at the close of the prosecution case, ana if this had not been intended to apply in the case of an accused whose personal attendance had been dispensed with either under Section 205 or Section 540a, it is hard to see why the exception was not specifically embodied in the section by way of a proviso. I accordingly hold that even in cases where the personal attendance of an accused has been dispensed with under Section 205, Criminal Procedure Code, the accused must attend in person after the close of the prosecution evidence for questioning by the Court under Section 342, Criminal Procedure Code. I accordingly accept the recommendation of the learned Sessions Judge and direct the trial Magistrate to call the accused for personal examination under Section 342, Criminal Procedure code. The parties in this case are directed to appear in the trial Court on 12-11958.