EMPEROR Vs. JAFFAR CASSUM MOOSA

JUDGEMENT

(1.) This is a revision application in which the accused takes two purely technical points against his conviction. He was convicted of an offence under Section 471 of the City of Bombay Municipal Act, 1888, and sentenced to a fine of Rs. 50. It appears from the record that one Dawood Karamalli appeared as the constituted attorney of the accused and was allowed to appear for him in Court, that permission being given under Section 205 of the Criminal Procedure Code. The first point taken is that the Magistrate ought to have insisted on the accused appearing in person in order that he might be questioned under Section 342 of the Code, but, in my opinion, where the Magistrate exercises the power given to him by Section 205 of dispensing with the personal attendance of the accused and permits him to appear by his pleader, the Magistrate is not bound to question the accused personally. Section 342 must be read subject to the provisions of Section 205. That has been held by this Court in Emperor V/s. Dorabshah Bomanji (1925) 28 Bom. L.R. 102 and by the Rangoon High Court in Mawng Po Nyein V/s. Haka Singh (1926) I.L.R. 4 Ran. 506.

(2.) Then the second point taken is this: It is said that the constituted attorney in this case, was not the accused's pleader , who is the agent referred to in Section 205. Now the agent in question was admittedly not a pleader or a qualified lawyer of any kind ; he was an estate agent, and it is certainly startling to me to be told that the presiding Judge in a criminal case may allow anybody he chooses, though not a qualified pleader or other person having a right of audience before the Court, or any legal qualification, to appear for an accused person. However we have to consider the definition of pleader in Section 4(1)(r) of the Code, which is in these terms: Pleader, used with reference to any proceeding in any Court, means a pleader or a mukhtar authorized under any law for the time being in force to practise in such Court, and includes (1) an advocate, a vakil and an attorney of a High Court so authorized, and (2) any other person appointed with the permission of the Court to act in such proceeding.

(3.) It has been held by this Court in the case, to which I have referred, of Emperor V/s. Dorabshah Bomanji and also, by another bench of this Court in In re Bajirao Abaji (1927) 29 Bom. L.R. 1587 that the words, "any other person" occurring in the definition are not restricted in their meaning, and are not limited to a person authorized by law to appear in a particular Court. Whether I should have arrived at that conclusion myself, it is not necessary to consider, because we are bound by the decisions of this Court to which I have referred. We must, therefore, hold that the agent in this case was properly authorized to appear for the accused.