DORABSHAH BOMANJI DUBASH Vs. EMPEROR

JUDGEMENT

(1.) In this case a complaint, was made against the accused before the Fourth Presidency Magistrate for offences-under the Bombay City Municipal Act. The case was a summons one. The petitioner says that he only received the summons on June 23, the date fixed for his attendance being the 24th; that not having sufficient time at his disposal he could not instruct a pleader; so he merely sent his estate manager to the Court, believing that, if necessary, an adjournment would be granted; that on June 24, when the case was called on, the petitioner's manager was. asked, among other things, whether certain repairs had been carried out, to which he replied in the affirmative; and that nothing further was done by the learned Magistrate, who at once proceeded to make an order convicting the petitioner and fining him Rs. 30.

(2.) This Court is asked to interfere on two grounds, firstly, that it is not true that; the manager pleaded guilty as recorded in the Magistrate's proceedings; and, secondly, that the Magistrate had no jurisdiction to treat the petitioner's manager as if he were the accused and convict him upon any plea that such manager might make. We called for the report of the Presidency Magistrate upon the allegations in the petition. With regard to the first point, the learned Magistrate reports that the charges were read to the manager, as well as interpreted to him and that he pleaded guilty and said that the work was not done according to requisition. He says that it is a falshehood on the part of the petitioner to say that when questioned whether the repairs had been carried out, the manager answered in the affirmative; and that if the manager had so answered he (the Magistrate,) would have at once recorded the plea of not guilty, and proceeded to record evidence, as required by law in summons cases. Whether or not the manager did in fact plead guilty is a question, which under the ordinary rule applicable to such a case mainly depends upon the actual record in the proceedings; and in view of the fact that the Magistrate has distinctly recorded that the "accused" by which, of course, he means the manager who was actually present and not the real accused pleads guilty," there is the strongest presumption that in fact such a plea was made by the manager, and to rebut it would require strong reasons for this Court holding that the record did not represent the true state of facts. In the present case, we certainly think that there is no sufficient ground shown for interfering upon the allegations of the petitioner, which are contradicted by the Magistrate's record.

(3.) The main question before this Court is the contention that the Magistrate acted illegally in convicting the accused upon the plea of his estate manager. It is urged that Section 242 and connected provisions of the Criminal Procedure Code show that to enable the Magistrate to convict an accused upon the plea of guilty under that section the accused himself must be present and actually make his plea. Now no doubt, Section 242, which says that when the accused appears or is brought before the Magistrate he should be asked about the alleged offence, and Section 243 which allows a conviction if the accused admits that he has committed the offence of which he is accused, at first sight, favour this contention. But, on the other hand, although Section 204 says that a Magistrate taking cognizance of an offence in a case where a summons should issue in the first instance, " shall issue his summons for the attendance of the accused," yet under Form No. 1 in Schedule V the person summoned is required to appear in person or by pleader before the Magistrate. Of course the form cannot itself override any express provision of the Code, but in the absence of a clear provision that only the accused's own plea should be accepted for the purpose of Section 243, the Court must give due regard to the fact that this form of summons contemplates an accused appearing not necessarily in person but by a pleader. No doubt under Section 205 of the Criminal Procedure Code, whenever a Magistrate issues a summons, lie may, if he sees reason to do so, dispense with the personal attendance of the accused, and permit him to appear by his pleader, and the words "or by pleader" may have been inserted in the form with reference to this particular provision. A Magistrate can, therefore, at the time of issuing a summons direct that the personal attendance of the accused should be dispensed with. On the other hand, he can also do this after the issue of the summons; and if the person summoned takes the risk of not attending in person and sends a pleader to represent him, provided the Magistrate gives the necessary permission under this section, the Code does allow representation of the accused by his pleader. This is in accordance with the provisions of Section 34 under which an accused person may of right be defended by a pleader. Then, again, under Section 366, in a case where the accused's personal attendance has been dispensed with, he need not even attend to hear judgment, if the sentence is one of fine or he is acquitted, and if his pleader is present at the delivery of the judgment. Having regard to these provisions, I think, it is clear that, in a case where the Court has allowed an accused to appear by a pleader, it must be taken that such appearance involves the performance of all acts that devolve upon the accused in the course of the trial, unless the Magistrate thinks it necessary or desirable that the accused himself should be present for any particular purpose, such, as for examination by the Court under Section 342 or pleading to a charge under Section 255. In such a case I cannot see any sufficient ground, in spit of the fact that Secs.242 and 243 speak of the accused only, for holding that his pleader may not make the necessary answers and plead guilty or not guilty on this behalf. A decision to this effect has already been given in Sind in The Crown V/s. Jamal Khatun [1912] 6 Sind. L.R. 206 to which Pratt, J., of this Court was a party.