The failure to observe the provisions of Section 242 and 342 of the Criminal Procedure Code vitiates the entire trial, and the accused's fundamental right to present their defence cannot be cured by the provisions of Section 537, Criminal P. C.

JUDGMENT

Sen, J. - This is an appeal by the Express Dairy Limited against an order of conviction passed by Sri N. K. Ghose, Municipal Magistrate, Calcutta, convicting the Company of having committed an offence punishable u/s 407 read with Section 488, Calcutta Municipal Act. In short, the company was charged with storing for sale adulterated milk. The company has been sentenced to pay a fine of RS. 500. Various defences were taken in the Court below. On the merits the defence was that the milk was not adulterated and in support of that various points were raised regarding the method of the examination of the milk.

2. Having regard to the decision at which I have arrived, it would not be proper for me to consider the merits of the case. Mr. Das appearing on behalf of the company points out to me that there was no examination of the company in accordance with the provisions of Section 342, Criminal P, C. He further points out that the provisions of Section 242, Criminal P. C., were not also observed. On these grounds he says that the whole trial has been vitiated. His argument is that by virtue of the provisions of Section 5, Criminal P. C., the offence with which the Company has been charged should have been tried in accordance with the provisions of the Code of Criminal Procedure. On behalf of the Corporation Mr. Mukherjee contends that there has been substantial compliance with the provisions of the Code of Criminal Procedure and that the accused has not been prejudiced by anything done by the learned Magistrate. On behalf of the Crown Mr. Banerjee adopts the contentions raised by Mr. Mukherjee. A further argument placed by them is that it is not possible to follow the provisions of Sections 242 and 342, Criminal P. C. inasmuch as the accused was merely a juridical person and not an actual person. That being so, they contended that there could be no personal examination of the Company under R. 342, Criminal P. C., nor could there be any explanation given regarding the offence charged to the company personally in accordance with the provisions of Section 242, Criminal P. C.

3. There can be no doubt that as the Company is merely a juridical person, the charge could not be explained to the Company itself nor could the Company personally make a plea. It is also obvious for the reasons stated above that the Company could not be personally examined in accordance with the provisions of Section 342, Criminal P. C. The question which arises is whether by reason of these circumstances the Court was absolved from following the provisions of Sections 242 and 342, Criminal P. C. In my opinion the Court was not so absolved. The Code provides in Section 205 for the appearance of an accused by his pleader. The word 'pleader' does not necessarily mean a lawyer engaged to argue the case but it includes an agent duly empowered to answer all questions on behalf of the accused. Now, in this case it was possible for the Company to be represented by somebody and indeed no other means of appearance were possible. If the Company was represented by what I may term its agent, then it was the duty of the Court to follow the provisions of Sections 242 and 342, Criminal P. C., as if such agent were the accused. In the present case the Company authorised a lawyer to defend the case, but it is not at all clear that the lawyer was an agent of the Company for all purposes; that is to say, it is not quite clear that the lawyer was given the right to do all such things as the Company could have done if it were a physical being. From the record it appears that one Mr. Calloden, the Manager of the Shop in Lindsay Street where the milk was seized, appeared on the date fixed for the trial, To neither of them was the charge explained in accordance with the provisions of Section 242, Criminal P. C. I shall assume for the moment that Mr. Calloden was empowered to do all things which the Company could have done and that he was a physical embodiment of the juridical person