DEOLAKHAN THATHERA Vs. STATE OF BIHAR

JUDGEMENT

(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: -

(3.) 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: -