Dave, J. - (1.) THIS case comes on a reference made by the Sessions Judge, Jodhpur, by his report dated 22nd April 1954.
(2.) THE facts giving rise to it are that on 28th June, 1953 one Govind Narain made a report to the Sub-Inspector Police, Division B Jodhpur that he had advanced a loan of Rs. 9001/- to Sahebjada Faijmohamad of Jodhpur and Faijmohamad had therefore mortgaged his house with him for the said amount. He had also executed a rent-note in favour of the complainant. On 13-1-40 the complainant got a decree for possession of the house and also for arrears of rent. On 17-4-53 he was put in possession of the house through the bailiff of the court. It was alleged by him that one Mst. Begum Fezun, widow of Taj Mohamed Khan, and Noor Mohamed Khan made a criminal trespass into his house and took possession of certain portion thereof and therefore, it was prayed that they should be dealt with for committing offences under secs. 447, 448 and 379 I. P. C. THE police investigated into the matter and challa-ned Mst. Begum Fezun Bibi and Noor Mohamad under sec. 448 I. P. C. Before the commencement of inquiry an application was presented by Mst. Begum Fejun to dispense with her personal attendance in the court under sec. 205 Cr. P. C. on the ground that she was old and also a pardanashin lady. On the 20th July,1953that application was granted and she was allowed to appear by a pleader. Thereafter the prosecution evidence was recorded. The court wanted to examine the accused under sec. 342 Cr. P. C. On 26th February, 1954, her advocate was therefore ordered to produce her in the court on the next date of hearing. Against this order accused presented an application in revision in the court of the Sessions Judge Jodhpur. It was urged therein that the case against the accused was a petty one, that it was in the nature of a civil suit and a criminal case was started just to dispossess her from the property. It was also urged that she was continuing in possession of that property for a number of years and she was never dispossessed by the court bailiff. It was further contended that in a case like this her advocate could be examine on her behalf under sec. 342 Cr. P. C. and that a charge could also be framed in the same manner. It was prayed that in such a case even if the accused was convicted there could only be a punishment of fine and therefore,she should be exempted under sec. 205 Cr. P. C. right up to the conclusion of the trial. These arguments have found favour with the learned Sessions Judge and therefore he has reported the case with the recommendation that the accused Mst. Begum Fejun should be allowed to appear by her pleader right upto the conclusion of the trial. Learned advocate for the accused has supported the reference while learned Government Advocate contests it. It is urged by the learned Government Advocate that the learned Sessions Judge ought not to have made any remark on the facts of the case because it is likely to preju-dice the trial court. It is also requested that this Court also should not go into the facts of the case. This argument is quite correct and I would not express any opinion about the strength or the weakness of the prosecution case at this stage. The only point to be considered is whether the attendance of the accused Mst. Begum Fezun in the trial court may be dispensed with right upto the conclusion of the trial. Learned Government Advocate has urged that the advocate of the accused cannot be examined by the court under sec. 342 Cr. P. C. and that the accused must therefore personally appear in the court so that she may be examined, according to the provisions of the said section. In support of his argument he has referred to the case of Ishwar vs. Bhagwandas (1 ). In that case it was observed that: - "sec. 342 does not purport to be only in the interest of accused persons. On the contrary it is laid down that the purpose is to enable the accused to explain any circumstances appearing in the evidence against him. The accused may or may not be able to explain those circumstances, and if the accused is not able to explain the circumstances than the Court may draw a presumption against the accused. The intention of the provision in my opinion is for the furtherance of justice and to enable the court to decide the issue in a criminal case, which is always, "did the accused commit the offence charged?" It was further observed that a statement under sec. 342 Cr. P. C. should be personal statement by the accused and not a statement made on his behalf by an advocate I respectfully agree with the view so far as it says that section 342 contemplates that ordinarily the accused himself be examined by the court in order to enable him to explain the circumstances appearing in the evidence against him. Such examination may be made at any stage of the enquiry or trial without previously warning the accused and therefore the intention of this provision is certainly for the furtherance of justice; but the question arises whether this section would be governed by section 205 Cr. P. C. when the accused is permitted by the court to appear by a pleader. In an earlier case of Mst. Tirbeni vs. Mst. Bhagwati (1) another learned Judge of the same High Court set aside the order of a Magistrate who had refused to excuse the personal attendance of a pardanashin lady and directed him to dispense with the attendance of the accused until such time as there was sufficient evidence on record to give him reason to suppose that she was guilty of the offence of which she was charged. Learned Government Advocate has next referred to the case of Hirasingh vs. State (3 ). In that case it was observed that - "the mere fact that an accused is a pardahnashin lady does not entitle her to remain exempted from appearance all the time even if her presence is required for a proper conduct of the case. " In that case the question whether a pleader of the accused exempted under sec. 205 Cr. P. C, could be examined under sec. 342 Cr. P. C. did not come for discussion. It is true that a person who is exempted from personal atten-dance under sec. 205 cannot claim as a right that the cannot be ordered to appear personally in the court at a later stage. Sub-sec. (2) of sec. 205 clearly lays down that the Magistrate enquiring in to or trying the case may at any stage of the proceedings direct the personal attendance of the accused even though his personal attendance may have been dispensed with earlier under sub-sec. (1 ). In the present case it is not a point in dispute that the Magistrate could not in any circumstance direct the personal attendance of the accused but the question involved is whether the Magistrate can examine the pledar of an accused under sec. 342 Cr. P. C. if the personal attendance of the accused himself is dispensed with. In my opinion, the court may examine the pleader in such a case if the pleader is willing to give a statement on behalf of the accused for whom he appears. In the case of Rajrajeshwari Debi and Charoo Bala Debi vs. The Emperor (4), the accused who were respectable pardahnashin ladies were charged with offences under secs. 307,308,305 and 326 I. P. C. The learned judges allowed them to appear "both at the inquiry and at the trial by their pleaders, subject to their having to appear before the court to hear the sentence passed, should the case be proved against them and the trial end in a conviction. " It was further ordered that if the accused be committed to the court of Session, the person-nal attendance of the ladies may be dispensed with till the Sessions Judge passed his order. In another case viz. Harinarayan Chandra vs. Emperor (5), the learned Judges of the same High Court observed as follows - "in sec. 205 the words "appear"seems to convey a double meaning, seemingly connoting not merely authority to act and plead, but also authority to personate the accused; but there is nothing to show that double meaning was intended by the legislature. It is necessary that someone should be present at the trial to look after the interests of the accused; and all that sec. 205 provides is that, when the Magistrate sees fit, a person against whom a summons has issued may be exempted from personal appearance, provided he engages a pleader to attend and see that the proceedings are properly and legally conducted. " Similarly, in the case of Emperor vs. Jamal Khatun and Emperor vs. Khatijan (6) it was observed that - "sec. 105 of the Criminal Procedure Code allows the accused to appear by a pleader and such appearance involves the performance of all acts which devolve upon the accused in the course of the trial, such as answering the examination by the court under sec. 342, or pleading, or refusing to plead to the charge under sec 225", A support to this view was taken from the terms of sec, 366 (2) by saying that - "the said section contemplates the absence of the accused upto the stage of judgment and even after that stage where the judgment is one of acquittal or one awarding a sentence of fine". A further support was given by the form of summons to an accused in schedule V of the Criminal Procedure Code, whereby the accused is - "required to appear in person or by pleader. " It was observed that - "this implies that the pleader who appears represents the accused for the purpose of answering to the charge and this would include answering question put by the Magistrate on the case made out by the prosecution". Similarly in the case of Kandamani devi vs. Emperor (7) it was held that not only a Magistrate but even the Sessions Judge has power to dispense with the personal attendance of the accused and permit him to appear by pleader during the sessions trial. In that case the trial court was directed that the accused who were pardahnashin ladies should not be compelled to appear in public at least until they were convicted. The learned Judges of the Bombay High Court have also taken similar view in the case of Emperor vs. Jaffar Cassum Moosa (1 ). In that case it was observed that - "where the Magistrate exercises the power given to him by sec. S. 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. Sec. 342 must be read subject to the provisions of sec. 205. " Thus a review of the above cases makes it quite clear that sec. 343 is subject to the provisions of sec. 205 of the Criminal Procedure Code, that the appearance of a pleader under sec. 235 Cr. P. C. involves the performance of all acts which devolve upon the accused in the course of the trial and therefore he can be examined under section 342 Cr. P. C. by the court, in place of the accused for whom he appears Section 366 of the Criminal Procedure Code further makes it clear that the personal attendance of the accused during the trial may be dispensed with by the court even till the delivery of the judgment and his conviction if the sentence is one of fine only. I do not therefore agree with the contention raised by learned Government Advocate that a pleader of an accused cannot be examined under sec. 342 in a case where personal attendances of the accused is dispensed with under sec. 205 Cr. P. C.
(3.) IN the present case it is clear that the offence under sec. 448 I. P. C. alleged against the accused is not a crime of a serious nature. It is also not in dispute that the accused is an old pardahnashin lady of about 70 years of age. Therefore the learned Magistrate who dispensed with her personal attendance should not have compelled her to appear simply for her statement under sec 342 Cr. P. C. The learned Magistrate does not say that her own statement is absolutely essential for certain reasons. Perhaps he was under the impression that her pleader could not be examined in her stead and therefore he directed her personal attendance. IN such a case the court may dispense with the attendance of the accused even till the delivery of judgment if only a sentence of fine is imposed. The reference made by the learned Sessions Judge is, therefore, accepted and the Magistrate is directed that he should dispense with the personal attendance of the accused until he thinks that she is liable to conviction and the sentence of fine is not adequate. .;