The main legal point established in the judgment is that it is not mandatory for the accused to be examined in person under S.342 Cr. P.C. when exempted from personal attendance under S.205 Cr. P.C., and the discretion lies with the magistrate to direct the accused to appear in person for examination.

1. The Revision Petitioner R.K. Karanjia, Editor of Blitz, Bombay is the accused in a case of defamation filed by the respondent. On an application by him, his personal attendance was exempted during the course of the trial under S.205 Cr. P.C. After the evidence for the prosecution was recorded, the case stood posted to 14-4-1960 for further proceedings. On that day the petitioner was not present in court. His advocate presented a petition stating that as the personal attendance of the petitioner had been exempted his presence need not be insisted upon for his examination under S.342 Cr. P.C. The learned Magistrate heard the parties and passed an order that the examination of the accused under S.342 would mean the examination of the accused in person and not through his 'Mukthyar' or pleader and directed the accused to appear in person on the next hearing date. The petitioner's advocate has come up in revision against the above said order. In para 3 of the petition, it is stated that the petitioner is in Europe as a journalist to cover the Commonwealth Conference and later the Summit talks and it would be very hard if he is directed to return and appear in court before the close of his professional work in foreign countries. The only question involved in this petition is whether an advocate of the accused who is exempted under S.205 Cr. P.C., could be examined under S.342 Cr. P.C., or whether it is mandatory that the accused should be examined in person.

2. It is true that a person who is exempted from personal attendance under S.205 cannot claim as a matter of right that he should not be ordered to appear personally in court at a later stage. Sub-S. 2 of S.205 clearly lays down 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 such attendance even though his appearance may have been dispensed with under sub-S. (1). It is not disputed by the petitioner's learned advocate that the Magistrate could not, in any circumstances direct the personal attendance. But the question involved is only whether the Magistrate is bound to enforce the personal attendance of the accused and question him in person or whether the pleader of the accused could be questioned under S.342 Cr. P.C.

3. Judicial opinion on this point is not uniform. In Dorabshah v. Emperor (AIR. 1926 Bom. 218) the question that came up for consideration was whether the court could act on the plea of guilty of an estate manager of the accused. Relying on certain English decisions which held that an accused could appear and plead by counsel or attorney, Fawcett, J., observes:

"Then again under S.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 S.342 or pleading to a charge under S.255. In such a case I cannot see any sufficient ground, inspite of the fact that S.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 his behalf."

A reading of the judgment would show that the case would equally apply to a warrant case. S.242 Cr. P.C. lays down that:

"When the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him and he shall be asked if he has any cause to show why he shou