The personal examination of an accused under Section 342 of the Code of Criminal Procedure is mandatory and cannot be dispensed with even if the accused is represented by a pleader under Section 540a of the Code.

( 1 ) THIS Rule, which has been referred to us by a learned Single Judge, involves the question whether a Court has jurisdiction to dispense with the personal examination of an accused under Section 342 of the Code of Criminal Procedure, when he has been permitted under Section 540a of the Code to he represented by a pleader. In this case, petitioner No. 2 Kanai La! Shaw was allowed to be represented by a lawyer. In the absence of the petitioner, his lawyer was examined under Section 342. Curiously enough, the Order Sheet contained the following endorsement: "examined the accused under Section 342 of the Code of Criminal Procedure. " Learned Counsel for the petitioner has contended that the failure to examine the said accused Kanai Lal Shaw under Section 342 of the Code of Criminal Procedure vitiated the trial. In our view, this contention is well-founded.

( 2 ) IN our view, the provisions of Section 342 of the Code of Criminal Procedure are mandatory. We are also of the view that the section provides for the personal examination of the accused and not any one representing him. This view is supported by the case of Adeluddin v. Emperor, 49 Cal WN 537: (AIR 1945 Cal 482) (A), a Bench decision of this Court, as well as by the unreported case of Ram Chandra Agarwala v. The State, Cri. Revn. No. 1287 of 1953 (Cal) (B), also a Bench decision. In the case of Champa Debi v. Babulal, Chunder and Guha, JJ. took a different view. In Criminal Revn. No. 1287 of 1953 (Cal (B), I and Sen, J. took the view that the case of Adeluddin v. King Emperor (A), had been rightly decided and the case of Champa Debi v. Babulal (C) had been wrongly decided and referred the point involved to a Full Bench for decision. The Full Bench constituted for the purpose took the view that the question did not strictly arise out of the facts as then ascertained and remitted the case to the Criminal Division Bench. Though deprived of the benefit of a Full Bench decision on the point, it is also the view of this Bench that the language of Section 342 of the Code of Criminal Procedure clearly provides for the personal examination of an accused. That being so, we would set aside the conviction of each of the petitioners and order a retrial upon the same charge.

( 3 ) I agree. The reference in some of the decisions of this Court to the provisions of Sections 205 and 540-A of the Code of Criminal Procedure, in determining the true intention of the legislature as to whether the accused person has to be examined personally under Section 342 of the Code of Criminal Procedure, does not appear to me to be either necessary or appropriate. Section 205 of the Code merely provides that whenever a Magistrate Issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. But Sub-section (2) of that section makes the position plain. It provides that the Magistrate enquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused and, if necessary, enforce his attendance in manner provided in the Code. It follows that although the legislature gave a discretion to the Magistrate issuing process, it empowered him expressly at the same time to enforce the attendance of the person complained against at any stage of the proceedings. Section 540-A as now amended, provides that at any stage of an enquiry or trial under the Code, if the Judge or Magistrate is satisfied for reasons to be recorded that the personal attendance of the accused before the Court is not necessary in the interests of justice, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such enquiry or trial in his absence and may. at any subsequent stage of the proceedings, direct the personal attendance of such accused. This section appears in a chapter of the Code dealing with miscella