iminal Appeal No 73 of 1966
105 Appeal from the judgment and order dated March 31 1965 of the Calcutta High Court in Criminal Revision No 921 of 1963
PK Chatterjee for the appellants
BK Bhattacharya GS Chatterjee for PK Bose for the respondent
The Judgment of the Court was delivered by Bachawat J
The complainant Sarajit Kumar Bose was a forest ranger having his headquarters at Bara Bazar range in the district of Purulia
Bibhuti Bhusan Dasgupta was the editor and Ram Chandra Adhikari was the printer and publisher of Mukti a local Bengali weekly journal with its registered office at Purulia town
At the instance of Sripati Gope a resident of Bhuni PS Patanda district Singhbhum they published a letter in the weekly issue of Mukti dated the 4th Asar 1388 BS corresponding to June 19 1965
The letter which bore the caption Wild law in the land of the Nags barbarians contained several defamatory statements concerning Sarajit Bose
On his complaint Sripati Gope and Bibhuti Dasgupta were charged with an offence punishable under sec
500 of the Indian Penal Code and Ram Adhikari was charged with an offence punishable under sec
501 IPC They were tried jointly by Shri SM Chatterjee Magistrate First Class Purulia
The Magistrate convicted all of them of the offences with which they were respectively charged and passed appropriate sentences
The appeals filed by them against the order were dismissed by the Sessions Judge Purulia
The order concerning the conviction and sentence of Sripati Gope has now become final
The two courts rejected his claim for protection under the first exception to section 499 IPC A revision petition filed by Bibhuti Dasgupta and Ram Adhikari was dismissed by the High Court
They have filed the present appeal after obtaining a certificate under Article 1341  c of the Constitution
All the courts concurrently found that the publication was not made by the appellant in good faith for the public good and that they were not entitled to the protection of the ninth exception to sec
499 as claimed by them Mr Chatterjee attacked this finding
The ninth exception to section 499 provides that it is not defamation to make an imputation on the character of another provided that the imputation be made in good faith for the protection of the interests of the person making it or any other person or for the public good
 Section 52 provides that nothing is said to be done or believed in good faith which is done or believed without due care and attention
 The appellants  case is that on their L2Sup C169 8 106 behalf one Dol Gobinda Chakravarty made enquiries and was satisfied about the truth of the defamatory statements
It appears that Dol Govinda did not make any report to the appellants in writing
The enquiries made by him did not reveal that all the defamatory imputations in the publication were true
On the materials on the record it is impossible to say that the appellants published the statements in good faith or with due care and attention
In Harbhajan Singh vs State of Punjab 1 the Court held that the accused person was entitled to the protection of the ninth exception to sec
499 if he
succeeded in proving a preponderance of probability that the case was within the exception
We do not find that the courts below placed upon the appellant any heavier burden of proof
Mr Chatterjee next contended that the trial of Bibhuti Dasgupta was illegal as he was not personally examined under sec 342 of the Code of Criminal Procedure
To appreciate this argument it is necessary to refer to the following facts
On September 27 1961 the Magistrate examined the complainant and issued summons to
the three accused
On the application of Bibhuti Dasgupta the Magistrate passed an order on December 12 1961 dispensing with his personal appearance and permitting him to appear by his pleader
On September 17 1962 the examination of prosecution witnesses was concluded
On the same day Ram Adhikari was examined under sec
On December 21 1962 the lawyer representing Bibhuti Dasgupta flied a petition stating that he was undergoing an operation in Calcutta and that the lawyer may be examined on his
behalf under sec
On the same date the Magistrate allowed the application and examined his lawyer
On April 17 1963 the Magistrate delivered judgment
The plea that the trial of Bibhuti Dasgupta was vitiated on account of his non examination under section 342 was not taken before the Magistrate or the Sessions Judge or at the hearing of the revision petition in the High Court
It was taken for the first time in the petition for grant of the certificate under article 134 1 c
In this background let us examine the contention
As a general rule save where the magistrate dispenses with the personal attendance of the accused person the first step in a criminal proceeding is to bring him before the magistrate
The attendance of the accused is secured if necessary by summons or by warrant of arrest
Thereafter the inquiry or trial proceeds in his presence
Section 205 of the Code of Criminal Procedure empowers the Magistrate whenever he issues a summons to dispense with the personal attendance of the accused and permit him to appear by a pleader
The section runs as follows  1  107 205
1 Whenever a Magistrate issues a summons he may if he sees reason to do so dispense with the personal attendance of the accused and permit him to appear by his pleader
2 But the Magistrate inquiring 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 in the manner hereinabove provided
 The form of summons issued to the accused runs as follows Whereas your attendance is necessary to answer to a charge of state shortly the offence charged you are hereby required to appear in person or by pleader as the case may be before the Magistrate of on the  day  of 
Herein fail not
 Section 540A empowers the magistrate at any stage of an inquiry or trial to dispense with the personal attendance of the accused if he is represented by a pleader
The section is as follows  540A 1 At any stage of an inquiry or trial under this 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 inquiry or trial in his absence and may at any subsequent stage of the proceedings direct the personal attendance of such accused
2 If the accused in any such case is not represented by a pleader or if the Judge or Magistrate considers his personal attendance necessary he may if he minks fit and for reasons to be recorded by him either adjourn such inquiry or trial or order that the case of such accused be taken up or tried separately
 The point in issue is whether the pleader can represent the accused for purposes of sec
342 and whether the examination of the pleader in place of the accused is sufficient compliance with the section in a case where the magistrate has dispensed with the personal attendance of the accused and permitted him to appear by a pleader
On this question there is a sharp conflict of judicial opinion
Most of the decisions upto 1962 are referred to in Prova Devi vs Mrs Fernandes1
In that case a Full Bench of Calcutta High Court by a majority decision held that the magistrate may in his discretion examine the pleader on behalf of the 1 AIR 1962 Cal
108 accused under sec
This view is supported by numerous decisions of other High Courts but from time to time many judges expressed vigorous dissents and came to the opposite conclusion
The two sides of the question are ably discussed in the majority and minority judgments of the Calcutta case
After a full examination of all the decided cases on the subject we are inclined to agree with the minority opinion
The main arguments in favour of the view that the examination of the pleader is sufficient compliance with the provisions of section 342 may be summarized as follows
The pleader authorised to appear on behalf of the accused can do all acts which the accused can do
The representation of the pleader extends throughout the trial except as provided in section 3662
The form of the summons shows that the pleader may answer to charge on behalf of the accused at every stage of the proceedings
He may even plead guilty under secs
242 243 251A 255 and 271
There is no reason why he cannot be examined under section 342 That section is subject to and controlled by
section 205
The accused can refuse to answer questions under sec
342 and there is no point in insisting on his personal attendance if he has no intention to answer them
Accused persons will suffer harassment and inconvenience if the magistrates have no discretion to dispense with their personal examination under section 342
Having considered all these arguments we are not convinced that pleader can be examined in place of the accused under section 342
Section 342 reads as follows  342
 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 inquiring 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 
 109 Sub section 1  of sec
342 consists of two parts
The first part gives a discretion to the Court to question the accused at any stage of an inquiry or trial without previously warning him
Under the second part the Court is required to question him generally on the case after the witnesses for the prosecution have been examined and before he is called for his defence
The second part is mandatory and imposes upon the Court a duty to examine the accused at the close of the prosecution case in order to give him an opportunity to explain any circumstances appearing against him in the evidence and to say in his defence what he wants to say in his own words
He is not bound to
answer the
questions but if he refuses to answer or gives false answers the consequences may be serious for under sub section 2 the Court may draw such inference from the refusal or the false answers as it thinks fit
Under sub sec
3 the answers given by the accused may be taken into consideration in the inquiry or trial
His statement is material upon which the Court may act and which may prove his innocence see State of Maharashtra vs Laxman Jairam1
Under sub sec
4 no oath is administered to him
The reason is that when he is examined under sec
342 he is not a witness
Before sec
342A was enacted he was not a competent witness for the defence
His statement under sec
342 was intended to take the place of what he could say in his own way in the witness box
see Hate Singh vs State of Madhya Bharat2
Under sec
342A he is now a competent witness
But the provisions of sec
342A does not affect the value of his examination under sec
Under sub section 3 of section 342 his answers may be put in evidence for or against him in other inquiries or trials for other offences
For instance if in a trial for murder he says that he concealed the dead body and did not kill the victim his statement may be used as evidence against him in a subsequent trial for an offence under sec
The privilege of making a statement under sec
342 is personal to the accused
The clear intention of the section is that only he and nobody else can be examined under it
This conclusion is reinforced if we look at sec
The whole of his examination including every question put to him and every answer given by him must be recorded in full and interpreted to him in a language which he understands and he is at liberty to explain or add to his answers and when the whole is made conformable to what he declares is the truth the record has to be signed by him and the Magistrate
The idea that the pleader can be examined on his behalf is foreign to the language of secs
342 and 364
It was well observed by Rankin J in Promotha Nath vs Emperor3 that 1 1962 Supp 3 SCR 230
2 AIR 1953 SC 468 470
3 AIR 1923 Cal
470 481 110  the intention of the statute iS that at a certain stage in the case the Court itself shall put aside all Counsel all pleaders all witnesses all representatives and shall call upon an individual accused with the authority of the Court s own voice to take advantage of the opportunity which then arises to
state in his own way anything which he may be desirous
of stating what is necessary is
that the accused shall be brought face to face solemnly with an opportunity given to him to make a statement from his place in the dock in order that the Court may have the advantage of hearing his defence if he is willing to make one with his own lips  The proposition that a pleader authorised to appear on behalf of the accused can do all acts which the accused himself can do at the trial is too wide
If the statute gives the accused a personal privilege or imposes upon him a personal duty only he can exercise the privilege or perform the duty
Thus under sec
3662 the accused must hear the judgment in person unless the sentence is one of fine only or unless he is acquitted
Under sec
342A only the accused can give evidence in person and his pleader s evidence cannot be treated as his
The answers of the accused under section 342 is intended to be a substitute for the evidence which he can give as a witness under sec
The privilege and the
duty of answering questions under sec
342 cannot be delegated to a pleader
No doubt the form of the summons show that the pleader may answer the charges against the accused but in so answering the charges he cannot do
what only the accused can do personally
The pleader may be permitted to represent the accused while the prosecution evidence is being taken
But at the close of the prosecution evidence the accused must be questioned and his pleader cannot be examined in his place
Sections 205 and 540A do not expressly mention that the pleader cannot be examined under sec
342 but this does not lead to the inference that the pleader can be so examined
On the other hand secs
353 360 361 and 366 expressly provide that the pleader may represent the accused for certain purposes but from this fact alone no inference can be drawn that the pleader cannot represent the accused for purposes of section 342 or other sections
It is from the scheme purpose and language of sec
342 that we are driven to the conclusion that the examination under the section must be of the accused person and not his pleader
In Dorabshah vs Emperor1 the Bombay High Court held that where the accused is permitted to appear by his pleader 1 AIR 1926 Bom
111 under sec
205 the pleader may on his behalf be examined and may plead guilty under secs
242 and 243
Whether the Court can act upon an admission of guilt by the pleader under secs
242 243 251A 255 and 271 does not directly arise in this case and we express no opinion on it
It is sufficient to say that the language of those sections and the effect of admissions under them are entirely different
We are not impressed with the argument that an accused person will suffer inconvenience and harassment if the Court cannot dispense with his attendance for purposes of sec
The examination under the section becomes necessary when at the close of the prosecution evidence the magistrate finds
that there are incriminating circumstances requiring an explanation by the accused
If there is
no evidence implicating the accused no explanation from him is necessary and he need not be examined under section 342
If there is evidence implicating him it is in his interest that he should be examined personally
There are exceptional cases when an examination of the accused personally under sec
342 is not necessary or possible
Where the accused is a company or other juridical person it cannot be examined personally
It may be that the Court may then examine a director or some other agent on its behalf see Express Diary Ltd vs Corporation of Calcutta1
Exceptional cases apart only the accused in person can be examined under section 342
We therefore hold that the Magistrate should have examined Bibhuti Dasgupta personally and the examination of his pleader was not sufficient compliance with sec
This conclusion does not dispose of Bibhuti Dasgupta s appeal
Under sec
537 the conviction and sentence are
not reversable on account of any error omission or irregularity in any proceedings during the trial unless the error omission or irregularity has  in fact occasioned a failure of justice
Mere non examination or defective examination under sec
342 is not a ground for interference unless prejudice is established
see Tilakeshwar Singh vs The State of Bihar2 KC Mathew vs The State of Travancore Cochin3 Ram Shankar Singh vs State West Bengal 4
Looking at the facts of this case we do not find that any prejudice was caused to Bibhuti Dasgupta by his non examination under sec
The prosecution evidence was closed on September 17 1962
Ram Adhikari appeared in Court and was examined personally
Bibhuti Dasgupta did not appear in Court on that date
After 3 months on December 21 1962 his pleader was examined on his behalf at his express request
The Magistrate delivered judgment on April 17 1963
1 ILR 2 3   1061 2
4 1962 Supp 1
SCR 49 64 112 On that date Bibhuti Dasgupta was
present in Court
He made no complaint at any time before the Magistrate or the Sessions Judge or the High Court that he had suffered any prejudice
Even in this Court Mr Chatterjee could not point out what further explanation could have been given by Bibhuti Dasgupta if he had been examined personally
We are satisfied that the omission to examine him under sec
342 did not cause him any prejudice and has not in fact occasioned a failure of justice
We are therefore not inclined to interfere with his conviction and sentence
In the result the appeal is dismissed
YP Appeal dismissed


Summary:
In a defamation case at the instance of the accused his personal appearance
was dispensed with by the Magistrate under section 540 A Cr
His advocate was examined under section 342 at the close of the trial and the accused was convicted
On the questions i whether the pleader can represent the accused for purposes of section 342 and whether the examination of the pleader in place of the accused is sufficient compliance with the section in a case where the Magistrate has dispensed with the personal attendance of the accused and permitted him to appear by a pleader and ii whether mere non examination of the accused or defective examination under section 342 vitiates the trial HELD i The privilege of making a statement under section 342 is personal to the accused and the scheme purpose and language of the section lead to the conclusion that only he and no body else can be examined under it
If the statute gives the accused a personal privilege or imposes upon him a personal duty only he can exercise the privilege or perform the duty
The second part of section 342 is mandatory and imposes upon the court a duty to examine the accused at the close of the prosecution case in order to give him an opportunity to explain any circumstances appearing against him in the evidence and to say in his defence what he wants to say in his own words
The answers of the accused under section 342 is intended to be a substitute for the evidence which he can give under section 342 A and the privilege and duty of answering questions under section 342 cannot be delegated to a pleader
Though sections 205 and 540 A which empower a Magistrate to dispense with the personal appearance of the accused do not expressly mention that the pleader cannot be examined under section 342 it does not lead to the inference that the pleader can be so examined
G H 109 B 110 C D 109 E 110 F H Dorabshah vs Emperor AIR 1926 Bom
218 disapproved
ii Under section 537 the conviction and sentence are not reversible on account of any error omission or irregularity in any proceedings during the trial unless the error omission or irregularity has in fact occasioned a failure of justice
Therefore the mere non examination of the accused in the present case under section 342 was not a ground for interference since no prejudice was established
111 F Tilakeshwar Singh vs The State of Bihar 1955 2 SCR 105 KC Mathew vs The State of Travancore Cochin 1955 2 SCR 1057 and Ram Shankar Singh vs State of West Bengal 1962 Supp 1 SCR 49 64 referred to