Decided on August 24,1953



Panigrahi, C.J. - (1.) This is a revision directed against an order of Sri M.A. Khan, Magistrate First Class, Jajpur, dated 31-12-52, whereby he examined an accused person under Section 342, Cr. P. C., after the examination of the defence witnesses had been completed. The petitioner is the complainant in a case under Sections 447 and 426 I. P. C. There were five accused persons, of whom the first accused Nakhya-tramalini Dei (.Opposite party 1) is a purdanashia lady. She was being represented at the trial by 'Mukhetear, M. M. Jena, and her personal attendance was dispensed with under Section 205, Cr. P. C. On 17-10-52, the Mukhtear was examined on her behalf. But unfortunately, it appears that he did not sign the statement he made under Section 342. The case was posted to 30-12-52, for the examination of defence witnesses and some of them were examined on that date. The case came up for arguments on the next day, namely, 31-12-52. On that day, it was brought to the notice of the Court that the Mukhtear had not signed the statement under Section 342, Cr. P. C. It appears that the Mukhtear had died on 11-11-52 and this fact also was brought to the notice of the Court on 31-12-52. It is apparent from these facts, therefore, that the first accused Nakhyatramalini was not represented at the trial when the defence evidence was recorded. The Magistrate accordingly passed the following order: "After 17-10-52 till yesterday (30-12-52) when the defence witnesses were examined nothing important took place. So, the accused going unrepresented does not matter much. Mukhtear Sri L.B. Das signs her Vakalatnama today and submits a petition under Section 205, Cr. P. C., for her to-day. This is allowed and accepted. Lett him represent her. Sri L.B. Das, Mukhtear, is examined to-day under Section 342, Cr. P. C. representing the accused Nakhyatramalini Dei under Section 205, Cr. P. C. He declines to adduce any evidence or to recall and examine any of the defence witnesses examined yesterday."
(2.) The statement itself is almost the same as was msde by Mukhtear M.M. Jena who had represented the accused Nakhyatramalini earlier till his death on 11-111952.
(3.) The grievance of the complainant, however, is that the procedure adopted by the trying Magistrate in examining the accused a second time renders the trial illegal and vitiates it and, therefore, that order should be quashed.;

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