This reference made by the Sessions Judge of North Malabar raises the question whether omission to examine the accused under section 342 of the Criminal Procedure Code who was permitted to appear by counsel under section 205, Criminal Procedure Code and whose counsel filed a statement on his behalf vitiates the trial.

The accused in the case was charged under section 323, Indian Penal Code, before a Bench of First Class Magistrates. In the course of the trial the first accused was granted exemption from personal attendance under section 205, Criminal Procedure Code, as he was employed as a Havildar Clerk at Bombay. The Bench Magistrates believed the prosecution evidence that the first accused along with the second accused caused simple hurt to P.W.1 and convicted the accused of an offence under section 323, Indian Penal Code.

Both the accused filed a revision petition before the Sessions Judge against the conviction and sentence passed upon them by the First Class Bench, contending that the conviction of the petitioners was illegal as the first accused was not questioned under section 342, Indian Penal Code. Accepting the contention of the petitioners the Sessions Judge has made