The Magistrate has the discretion to dispense with the personal attendance of the accused when examining him under Section 342, Criminal Procedure Code, if the accused is represented by a pleader and if the Magistrate is satisfied that the personal attendance of the accused is not necessary in the interests of justice.

( 1 ) ACCUSED Tarachand is being prosecuted for offences under Sections 406 and 420, Indian. Penal Code before the First Class Magistrate, Mhow. He applied for being exempted from personal appearance.

( 2 ) THIS prayer was initially rejected but the High Court of Madhya Bharat in criminal Reference No. 129 of 1951 granted exemption in the following terms:

"i would therefore direct that the exemption be granted to the accused on the ground that he lives at Dehradun and it would be very expensive and inconvenient for him to attend the Court at every time and grant him exemption throughout the trial. "

( 3 ) AFTER the case went back to the trial Court prosecution evidence was examined and the stage was reached when the examination of the accused under Section 342, Criminal P. C. was to take place. At that time it was urged on behalf of the state that the accused could not be examined through his counsel and that he ought to personally appear. The Magistrate rejected the contention in view of the terms of the order of the High Court in this very case. On revision the learned sessions Judge took the same view.

( 4 ) THE present petition is directed against that order.

( 5 ) THE learned Deputy Government Advocate contended relying upon the decisions reported in Sardar v. Emperor, AIR. 1934 All 693 (1) (A); Adeluddin v. Emperor, air 1945 Cal 482 (B); State of Madhya Bharat v. Hiralalji, AIR 1953 Madh-B 26 (C) that the accused ought to remain personally present in order that he may be questioned under Section 342, Criminal Procedure Code with regards to facts appearing in evidence against him and that it is not open for him to appear through his counsel for his examination under that section.

( 6 ) ON the other hand Mr. Garg for the accused relied upon the decisions reported in In re, Ragha-van, AIR 1950 Mad 814 (D); Sm. Champa Devi v. Babulal Ooenka, air 1950 Cal 16,1 (E); Rusi Bis-wal v. Nakhyatramalini Devi, AIR 1954 Orissa 65 (F) and Begum Eejun v. The State, (S) AIR 1955 Raj 175 (G), in support of the contention that where the accused is granted exemption from personal appearance it is not necessary for him to appear personally lor his examination under Section 342, Criminal Procedure Code and that he could answer through his counsel duly instructed for the purpose.

( 7 ) IN order to consider which one of these two views I ought to follow it will be necessary to examine the provisions under Sections. 342, 353 and 540-A, Criminal p. G.

( 8 ) SECTION 342, Criminal Procedure Code is as follows:

" (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence. (2) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them; but the court and the jury (if any) may draw such inference from such refusal or answers as it thinks just. (3) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed. (4) No oath" shall be administered to the accused when he is examined under Sub-section (1 ). ''

( 9 ) HAVING regard to the wordings of this section it appears to me to be clear that normally it is the personal presence of the accused that is contemplated under this section.

( 10 ) SUB-SECTION (1) of Section 342 indicates that it is open for the Court to put any question to the accused as regards any piece of evidence appearing against him and this he can do without previously warning him. He is also empowered to questi