Appeal No 2485 of 1992
From the Judgment and Order dated 8101991 of the Calcutta High Court in FMAT No 2532 of 1991
PS Poti and Rathin Das for the Appellants
Dr Shankar Ghosh Raj Kumar Gupta and PC Kapur for the Respondents
J Special leave granted
487 This appeal arises against the judgment dated October 8 1991 of the  Division Bench of the Calcutta High Court made in FMAT No 2532 of 1991
The first respondent a limited Company filed under article 226 of the constitution of India Civil Order No 16339 W of 1988 for a mandamus to refrain the appellants from giving effect to the vesting of the lands in Dag No 1 Khatian No 10 Tauzi No 56 JL No 26 Mouza Chowkgaria within PS Kasba admeasuring 12840 acres and to take possession of tank fisheries lying therein pursuant to the provisions of West Bengal Estate Acquisition Act of 1954 for short the Act 
The learned Single Judge directed an action under Sec
102 of the Act after giving an opportunity to the respondents and to take possession of the said lands pursuant thereto
On appeal the Division Bench in the impugned judgment held that the appellants should take action under the West Bengal Land Reforms Act 1955 within a period of two months from the date of the said judgment and on its failure the respondents would be at liberty to deal with and dispose of the lands in its own manner
Until then the appellants were restrained to take possession of the land
Feeling aggrieved against the said direction the above appeal under article 136 has been filed
The Revenue Officer found from finally published record of rights that the lands in question were classified as Beel  marshy land and tank fisheries would he classified as Beel Mash Khas 
The learned Single Judge and the Division Bench of the High Court found that when the Revenue Officer initiated proceedings to revise the old Jama Rs 1230
9 Anas in three Jamas of Rs 1188 and odd in khata No 102 Rs 396 and odd in khata No 128 and Rs 3024 and odd in khata No 131
the respondent succeeded in his appeal under Sec
443 of the Act holding the lands to be Tank fisheries  and that therefore old Jama was to be maintained
So the Division Bench directed to take action under the Land Reforms Act
Shri PS Poti learned Senior Counsel for the appellants contended that by operation of Secs
4 and 5 of the Act fisheries being one of the interests that stood extinguished and vested in the State Govt
Free of all incumbrances with effect from June 1 1956 the respondents have lost right title and interest therein
Section 6 only enables an intermediary to retain possession of certain enumerated lands which includes tank fisheries provided he makes an application in form B  within the specified time expressing his intention to retain the lands
Since the respondent had failed to do so the entire lands including tank fisheries stood vested in the state
As per the entries in the record of rights the lands are only Beel Marshy lands and not tank fisheries and therefore even the exercise of the option to retain possession is not available
Even assuming that the lands are tank fisheries what was saved from the operation of the Act is the entitlement of the respondent to hold 488 the land as a tenant without any interest therein except the right to remain in khas physical possession subject to such terms and conditions as may be prescribed by the Govt
and payment of rent
Since the respondent raised a dispute the learned single Judge rightly directed an enquiry under Sec 10 2 in this behalf and to take action pursuant to its result under Sec
101
The Division Bench committed gravest error in treating that the decision of the Tribunal under Sec
443 relating to Jama to be final and the lands to be tank fisheries and that the respondent is entitled to retain khas possession with all right title and interest therein as an owner
The direction given to initiate the action under the Land Reforms Act 1955 within the specified period and on failure thereto liberty given to the respondent to alienate the lands is beyond the relief sought in the writ petition
Therefore the Division Bench committed manifest error of law warranting interference
Dr Ghosh learned senior counsel for the respondents contended that initially Devendra Nath Dey Sarkar purchased the lands from Harkishan Mondal the original Zamindar in 1911 and from him the respondents had purchased the leasehold rights in 1937 and ever since they have been using the lands as tank fisheries
When notification under Sec 4 was issued the lands were being used as
tank fisheries
Despite its vesting by operation of Sec
62 the respondent has right to retain possession as an owner
In support thereof he placed reliance on State of UP vs Krishna Gopal  Anr
1988 Suppl
2 SCR 391 State of West BengaI vs Atul Krishna Shaw  Anr
1990 Supp 1 SCR 91 and Sasanka Sekhar Maity  Ors
vs Union of India  He further contended that the liability of dispossession of the respondent from the lands would arise only if the possession is found to be unlawful
But by operation of Sees
62 and 105 the possession is lawful
The order of the Appellate Tribunal passed in 1957 under section 443 having been allowed to become final and the civil suit for declaration that it is Beel and not tank fisheries having filed by the State and got dismissed concludes that the lands in question are only tank fisheries
By operation of Subsec
2 for Sec
6 of the Act the respondent is entitled to retain possession and the action for dispossession under Sec
10 1 is illegal
The Division Bench therefore rightly directed to initiate proceedings under the Land Reforms Act and to take action thereunder
Admittedly the Act came into force on February 121954
Notification under Secs
41 and 3 was published in the prescribed manner specifying the date of vesting of the estate and had come into effect from June 1 1956
By operation of sub sec
1 of Sec
5 the estate and all the rights of intermediaries including fisheries in the estate shall stand determined and ceased and stood vested in the State free from all incumbrances
Incumbrance defined under Sec 2h of the Act means in relation to estates and rights of intermediaries therein does not 489 include the rights of a raiyat or of an under raiyat or of a non agricultural tenant but shall except in the case of land allowed to be retained by an intermediary under the provisions of sec
6 include all rights or interests of whatever nature belonging to intermediaries or other persons which relates to lands comprised in estates or to the produce thereof
Therefore title to rights or interests in lands which include fisheries held by an intermediary shall stand extinguished and ceased and stood vested in the state free of all incumbrances
The respondents being purchasers of lease hold interest in tank fisheries as per their own case it also stood extin guished
But however since the appellant treated the respondent as an intermediary we proceed on that footing
The exceptions engrafted in the incumbrance and exempted from the operation of Sections 4 and 5 are only the rights of a raiyat or of an under raiyat or of a non agricultural tenant and the right of retention of possession allowed to an intermediary under Sec6 of the Act
All other rights interest of whatever nature or little belonging to the intermediaries or other persons who hold the lands under lease from intermediary should also stood extinguished
All grants and confirmation of title to estates and rights therein to which the declaration of vesting applies and which were made in favour of intermediaries shall stand dismissed and ceased by operation of Sec
51 b of the Act Section 6 postulates by a non obstanti clause that notwithstanding anything contained in secs
4 and 5 an intermediary shall except in the cases mentioned in the proviso to sub sec
2 but subject to the other provisions of that sub sec be intitled to retain with effect from the date of vesting various kinds of lands like homestead etc
enumerated therein including tank fisheries  covered by clause e thereto
The explanation of tank fisheries  means a reservior or place for the storage of the water whether formed naturally of by excavation or by construction of embankments which is being used for pisciculture or for fishing together with the sub soil and the banks of such reservoir or place except such portion of the banks as are included in a homestead or in a garden or orchard and includes any right or pisciculture or fishing in such reservoir or place
Therefore if lands comprised of tank fisheries whether naturally formed or by excavation or by construction of embankments being used for pisciculture or fishing the intermediaries became entitled to retain possession despite the intermediaries having been divested of right title and interest therein
This is made manifest by Sec
105 of the Act which postulates that nothing in this section shall authorise the Collector to take khas possession of any estate or of any right of an intermediary therein which may be retained under sec6 
Sub sec
2 of Sec 6 declares that An intermediary who is entitled to retain possession of any land under sub sec1 shall be deemed to hold such land directly under the State from the date of vesting as a tenant subject to such terms and conditions as may be prescribed and subject to payment of such rent as may be determined under the provisions of this 490 Act and as entered in the record of rights finally published under Chapter V except that no rent shall be payable for land referred to in clause h or i provided that if any tank fishery or any land comprised in a tea garden orchard mill factory or workshop was held immediately before the date of vesting under lease such lease shall be deemed to have been given by the State Govt
On the same terms and conditions as immediately before such date subject to such modification therein as the State Govt
may think fit to make 
On the issue of notification under Sec49 Sec 52 prescribed procedure to deal with raiyats and under raiyats covered in Chapter 11 etc
It says that the provisions in Chapter II shall with such modification as may be necessary apply mutatis mutandis to raiyats or under raiyats as if such raiyats or non raiyats were intermediaries and the land held by them were estates and such a person holding under a raiyat or an under raiyat were a raiyat for the purpose of clauses c and d of Sec5 provided that where a raiyat or an under raiyat retains under sec6 any land comprised in a holding then notwithstanding anything to the contrary contained in sub sec
2 of sec6 then he shall pay the rent as prescribed in clauses a to d thereto
Under Sec5c every raiyat holding any land under an intermediary shall hold the same directly under the state as if the state had been the intermediary and on the same terms and conditions as immediately before the date of vesting
Thus the right title and interest of a raiyat or under raiyat in the lands in his possession and enjoyment are saved
By operation of law they became full owners thereof subject to the terms and conditions that maybe imposed under Sec 52 and payment of Jama existing on the date of notification or revised from time to time and finally entered in Record of Rights
The pre existing rights of the intermediaries in the estate to which the declaration applied shall stand vested in the State free from all incumbrances
Section 6 does not have the effect of divesting the state of the vested right title and interest of the intermediary
One of the rights ie possession held by the intermediaries is the only interest saved by Sec6
from the operation of Secs
4 and 5
The fishery rights also stood vested
The pre existing rights title and interest therein also shall stand determined as against the state and ceased
The Collector had symbolic possession under Sec 10
But by use of non obstanti clause in Sec6 1 the respondent became entitled to retain khas possession of tank fisheries and he shall hold tank fisheries directly under the state on such prescribed terms and conditions and subject to payment of such rent as may be determined under the Act from time to time as finally entered in Record of Rights
If any lease by the intermediary of any tank fisheries granted prior to the date of vesting by operation of the proviso to sub sec
2 of Sec 6 the lease shall be deemed to have been given by the State Govt
On the same terms and conditions and subject to such modification 491 therein as the State Govt may think fit
Such holding of the land by the intermediary of the tank fishery shall be as a tenant
The word retain  has been defined in Black s Law Dictionary 6th Edition page 1316 to mean to continue to hold have use recognise etc
and to keep 
In Collings English Dictionary at page 1244 retain  has been defined as to keep in one s possession to be able to hold or contain to hold in position to keep for one s future use as by paying a retainer or nominal charges 
In Webster Comprehensive Dictionary International Edition Volume II at page 1075 the word retain  has been defined to keep or continue to keep in one s possession 
Section 102 of the Act empowers the Collector after his taking charge of the estate and the interest of the intermediaries under Sec
101 to issue a written order serving in the prescribed manner requiring the intermediary or any person in possession khas or symbolic of any such estate or any interest to give up such possession by a date to be specified in the order which shall not be earlier than 60 days from the date of service of the order etc
Sub section 5 of Sec
10 prohibits him to take khas possession of any right of intermediary in the estate retained under Sec6
The conjoint operational conspectus assists us to conclude that the preexisting right title and interest in the lands situated in an eatate stood extinguished and ceased to have effect on and from notified date ie June 1 1956 and stood vested in the state free from all incumbrances
The non obstanti clause under Sec6 excluded from the operation of sees
4 and 5 only of the interest of the respondent to retain physical possession of the lands covered by Sec6 subject to Sec 6 2
The intermediary by operation of Sec
102 shall be required to submit in form B  within 60 days from the date of issuing notice under Sec
10 1 of his intention to retain possession of the tank fisheries
On such submission of Form B  the Collector without dispossessing himit shall be entitled to prescribe such terms and conditions to which the intermediary or the lessee shall be bound and hold the tank fishery and shall remain in possession using the tank fisheries for pisciculture or for fishing and subject to payment of such rent as may be determined under the Act and finally entered in the Records of Rights
Under Sec 39 in Chapter V the State Govt has to carry out the purpose of the Act
It shall prepare the Records of Rights in respect of the lands in an estate in any district or a part of a district in the manner prescribed therein
Section 44 provides the procedure for publication of the draft and final Record of Rights prepared or revised
Sub section 1 thereof postulates that when a Record of Rights has been prepared or revised the Revenue Officer was enjoined to have it published in the prescribed manner
On receipt of objections if any made 492 regarding any entry therein or any ommission thereof he shall consider the same and is enjoined to pass an order under Sec5A of the Act
By operation of the proviso to sub sec
1 of Sec
44 the order so passed under Sec
5A shall be final subject to the order of the appellate Tribunal under Sec 44 3 and during the continuance of that order it is not liable to be reopened
The respondent is not right in its contention as found favour with the High Court that entries once made shall be final and can never be revised
The word revised  under sub sec
1 of Sec
44 indicates that the State Govt
or its officers shall be entitled to revise from time to time the Record of Rights and to make necessary entries or corrections in the relevant columns of Record of Rights in its settlement operations or as per exigency envisaged under the Act and the rules made there the order under Sec
443 becomes final so long as there is no revision effected
The question of res judicate therefore does not arise and the previous appellate order does not preclude the authorities to revise the Record of Rights
The Division Bench of the High Court therefore is not right in its conclusion that the order passed by the appellate authority under Sec
443 is final and the authorities have no jurisdiction to revise the Record of Rights
After the act was amended by Act 33 of 1973 Sec
57B was brought on statute which had barred the jurisdiction of the civil courts and exclusive jurisdiction has been conferred on the revenue authorities to deal with the matters arising under the Act
So the dismissal of the suit as having been abated is of little consequence
The appellants contend that even on the date of vesting the lands in question are Beel lands and that it is not tank fisheries
The entries in the record of the rights disclose that the lands in question are being used as homestead or for agricultural purpose and that therefore it is not tank fishery
The respondents disputed the Govt
s stand and so it is a disputed question of fact
We do not propose to go into nor decide the same
It is true as rightly contended by Dr Ghosh that the lands once retained under Sec6 by the intermediary and accepted by the authorities pursuant to form B  declaration the intermediary is entitled to retain possession and is not liable to dispossession so long as he complies with the terms and conditions if any imposed and the rent imposed is being paid
The avowed object of Act is to divest the pre existing right title and interest of the intermediary in the lands situated in an estate in a district or part of the district and shall stand divested from the Zamindar or intermediary except of a raiyat or under raiyat or non agricultural tenant
Notwithstanding such divestment thereof the intermediary has been empowered to hold and retain possession directly under the state and hold it as a tenant subject to such terms and conditions and subject to payment of rent as may be determined under the Act
Therefore the entitlement to retain possession of the land ie tank fisheries in this case is not absolute but hedged with the conditions precedent of expressing his intention to retain 493 possession by filing form B  within 60 days and abiding to comply with such terms and conditions as may be imposed and also payment of rent
By operation of the explanation to Sec
61 e tank fisheries not only it must be a tank fishery at the date of vesting but it must also continue to be used for pisciculture or for fishing
The emphasis on being used  obviously is that the tank fisheries should be continued to be used for public purpose namely the fish seedling or fish must be made available for public consumption
Dr Ghosh is right that the crucial date is the date of vesting with regard to tank fishery also
Not only that the intermediary shall hold the tank fishery on the date of vesting as tank fishery but continue to hold and use the same thereafter for pisciculture or fishing as explained in explanation 61 e of the Act
Subsequent conversion of the land as tank fisheries is not material
Whether as a fact it was used as a tank fishery on the date of vesting ie June 1 1956 and being continued to be used as such or converted later on is a question of fact to be adjudicated after giving reasonable opportunity to the respondents
Equally whether the respondents exercised the option to retain possession of tank fishery within 60 days from the date of publication of notification under section 4 or the notice under Sec
101 etc is also a question of fact to be determined
In Saroj Kumar Bose vs Kanailal Mondal  Ors
the facts were that the predecessor in interest of the respondents took permanent lease of fishery right without sub soil rights under a registered lease deed prior to the Act came into force and they continued to remain in possession and was using the lands as tank fishery
The lassor filed a suit for recovery of rent together with interest
The appellant lessee resisted the suit liability contending that the tank fishery stood vested in the State and that therefore he was absolved of his liability to pay rent to the lessors
The trial court decreed the suit
On appeal it was confirmed
Dismissing the appeal this court held that by operation of sec6 of the act the right to retain possession of tank fishery by an intermediary was saved and that therefore the lessor continued as an intermediary to remain in khas possession
In spite of the estate vested in the State the tank fishery continued to remain in possession of the lessor
In that context it was held as relied on by Dr Ghosh that khas possession is not a necessary condition for retaining the property by intermediary
State had recognised the plaintiffs as tenant by accepting rent from them
Therefore it was held that interest of the plaintiff did not vest in the State either
In State of West Bengal vs Atul Krishna Shaw  Anr
1990 Supp 1 SCR page 90 by a bench of this court to which one of us K RamaswamyJ was a member the facts were that after the estate vested in the state the tank fisheries continued to remain in possessions of the respondent intermediaries
Suo moto 494 proceedings were taken for correction of the classification of lands on the grounds that the plots were wrongly recorded as fishery plots
The respondents objected to the re classification contending that they were continuing to cultivate pisciculture in the lands
The claim of the respondents was negatived by the Settlement Officer
On appeal the Tribunal reversed the order of the Settlement Officer and confirmed the original classification as tank fishery
On a writ petition filed in the High Court by the State it was dismissed in limine
While allowing the appeal this court held that the crucial date for consideration whether the lands were being used as tank fishery was the date of the vesting and subsequent conversion was not material and that by operation of Sec 6 2 of the Act the tank fishery stood excluded from the operation of Sec 4 and Sec 5 of the Act
Placing reliance on the findings at p 101A  B namely Therefore when by means of reservoir or a place for storage of water whether formed naturally or by excavation or by construction of embankment is being used for pisciculture or for fishing is obviously a continous process as a source of livelihood would be tank fisheries  within the meaning of Sec6 1 e 
Such tanks stand excluded from the operation of Sections 4 and 5 and the crucial date is the date of vesting
As seen earlier the effect of the operation of Secs4 and 5 is divesting the intermediaries of his pre existing right title and interest in the estate except those which were exempted from the operation of the Act
One of the exemptions is retention of the possession of the lands covered by Sec 6 of the Act
See 61 e tand fisheries is one such
Sub section 2 amplifies its effect
Sub section 2 transposes the pre existing possessory right of the retained lands of an intermediary of tank fisheries into holder of it as a tenant without any interest therein
By fiction of law the respondent was transposed as holder of the possession directly under the State as tenant subject to such terms and conditions as may be specified and subject to payment of rent as may be determined from time to time
Therefore what was saved by non obstenti clause of Sec61  2 of the Act is the right of retention
of the Physical Khas Possession of tank fisheries
What was intended in Atul Kishan Shaw s case was that Sec
62saved the retention of possession of tank fisheries and not divesting the state of the vested rights etc
in the estate
In South Indian States of AP and Tamil Nadu etc
of the Madras Province Madras Estate Abolition and Conversion into Raiyatvari Act 26 of 1948 is in operation
After the states reorganisation in Tamil Nadu it is called Tamil Nadu Act and in Andhra Pradesh it is called Andhra Pradesh Andhra Area Act
Thereunder Sec
II provides procedure to grant raiyatvari patta to a raiyat in occupation
Section 32 d proviso gives statutory protection to a raiyat from dispossession till raiytavari patta has been granted  Sees
12 to 14 give right to landholder to obtain patta and see 15
empowers the settlement officer to grant 495 patta to the landholders
Section 19 provides that where any raiyat or non raiyat land has been sold by any landholder for non agricultural purpose before first day of July 1945 the buyers shall be entitled to keep the land subject to payment by him to the Govt
of the raiyatvari assessment or ground rent which may be imposed upon the land and under the proviso it was declared that sale was not void or illegal under any law in force at that time
The object of those provisions is to confer raiyatvari rights on person in occupation be it raiyat or landholder absolutely with no further conditions
Thereafter he is entitled to use the raiyati land as if he is the owner thereof and the liability is to pay only land assessment or cist
There is no limitation on the nature of user of the land
But the language in the Act appears to be different
As regards the raiyat or under raiyat they are treated differently from intermediary
As regards the raiyat and non raiyat is concerned his pre existing right title and interest in the land was not abolished and he is entitled to retain all his boundle of rights as intermediary directly under the state subject to the orders passed as per the procedure prescribed under Sec52 and the relevant rules and payment of rent
But in the case of an intermediary he has been given only right to retain possession under Sec
6 of the homestead lands or land comprised in or appertaining to buildings and structures 25 acres of agricultural lands in khas possession factories workshops tank fisheries or other enumerated properties etc
without any interest therein and subject to the terms and conditions that may be imposed and payment of rent excising or revised as per the provisions relevant thereto
Sub section 2 of Sec
6 expressly postulates that if he holds the tank fisheries should be for continued for use as tank fisheries and it would be subject to such terms and conditions and subject to payment of rent as may be fixed
The holding of the land is as a tenant the emphasis is that his possession is without any interest in the land
Under TP Act a tenant has leasehold interest in the land
But in Sec 6 2 as a tenant for the purpose of payment of the rent and retention of possession and appears to be nothing more
As regards tank fishery is concerned though exemption has been granted it is subject to the condition of continued user for pisciculture of fishing
From the scheme of the Act it would appear that the intermediary or the lessee gets no absolute right in the tank fisheries which were already divested but to remain in khas possession and to enjoy the usufruct thereof ie for pisciculture or fishing without any interest or sub soil rights and subject to such terms and conditions and subjects to payment of rent as prescribed under the Act but not as owner thereof
The direction therefore by the High Court that the respondents are entitled to dispose of the land is contrary to and in negation of the scheme of the Act and Rules
Therefore it is manifestly illegal
The appeal is accordingly allowed
The order of the Division Bench of the High Court is set aside
The direction of the Single Judge is restored
The appellant 496 is free to issue notice to the respondent under Sec
102 of the Act and conduct an enquiry into and find 1 on the date of the vesting whether the lands were being used for pisciculture or fishing ie tank fisheries 2 whether the respondent had submitted form B  within the prescribed time exercising the option to retain possession of the lands in question as tank fisheries and 3 whether the respondent is continuing to use the lands in question as tank fisheries
Reasonable opportunities shall be given to the respondents to prove itstheir case
On the enquiry if it is found that the lands are not tank fisheries as on the date of the vesting or that the respondent had not submitted option in Form B  to retain possession of the lands as tank fisheries within the prescribed period then the lands stood vested in the state free from all incumbrances and authorities are entitled to take possession of the land under Sec
101 read with Sec
103
In case if it finds that the lands were being used as tank fisheries as on the date of vesting and that the respondents exercised the option within the time to retain possession and is continuing to use the tank fishery for pisciculture or for fishing and if it has been continuing in possession of tank fishery it is free to impose if not already impossed such terms and conditions as may be necessary to ensure continued use of tank fishery for pisciculture or for fishing subject to payment of such rent as may be fixed or revised and ultimately entered in the Record of Rights
In case the respondent commits contravention thereof it is open to the state to resume possession
In case the respondent is not using the tank fishery for pisciculture or for fishing or alienated the lands it is open to the appellants to take possession of the lands and all sales if made by the respondents do not bind the state
The appeal is accordingly allowed with the above modification and the rule absolute issued by the learned single Judge of the High Court will stand modified to the above extent and the writ petition is disposed of accordingly
In the circumstances parties are directed to bear their own costs throughout
Appeal allowed


Summary:
The daughter of the appellant was married to the respondent and a girt child was born out of the wed lock
The couple went to the USA alongwith the child but the latter was sent back on her mother s behests
While the child was in the custody of the appellant the mother also came back and committed suicide leaving the child in the custody of the appellant
Meanwhile the first respondent married an American girl and embraced christianity
Thereupon the appellant applied to the local court for appointment as guardian of the child
The respondent appeared in court but took the child to USA forcibly and entrusted her to the custody of his newly wedded wife
On being appointed as guardian of the child the appellant filed a complaint of kidnapping against the respondent and three others
The respondent applied for exemption from personal appearance in the proceedings in criminal court
The permission was granted subject to the condition that he will appear whenever called upon to do so
On the completion of the evidence the advocate of the respondent sought permission for examination under section 313 Cr
PC in place of the respondent
Thereupon the appellant sought direction for personal appearance of the respondent for being examined under Section 313 Cr
The Magistrate dismissed the application of the appellant This Court examined the provision of Sub Section 1 of Section 313 Cr
PC and HELDIntroduced in its present form pursuant to the recommendations made in the 41st Report of the La Commission sub section 1 of 468 Section 313 begins with the words In every inquiry or trial
 472 B The old sub section 1 of Section 342 has been divided Into two a  b
Clause a us the expression may  to indicate dot the matter is left to the discretion of the court to put questions to the accused at any stage of the inquiry or trial whereas clause b uses the expression shall to convey that it is mandatory for the court to examine the accused after the witnesses for the prosecution have been examined
472 C The proviso was added to sub section 1 with a view to enabling the court to dispense with the examination of the under clause b in a summons case in the court has already dispensed with this personal attandence if the court on completion of the prosection evidence finds that there are certain circumstances appearing in the evidence against the accused the court is obliged by clause b to question the accused before be Ls called upon to enter his defence
472 D Section 313 1 applies to all inquiries and trials under the co to give the accused an opportunity to explain the circumstances appearing against him
The trial court is empowered by clause a to question the at any stage of inquiry or trial while clause b obligates it to question the accused before he enters his defence
The rule of audi alterm partem incorporated therein is intended for the benefit of the accused
472 F The proviso is in the nature of an exception to dawn b of sub section 1 of section 313 Cr
PC and applies to a sommons case
Where the personal presence of the accused has been dispensed with the magistrate can dispense with the mandatory requirement of clauseb
472 G Since the offence under section 363 PC is punishable with imprisonment for a term exceeding two years it is a warrant cm so even if the court has dispensed with the personal attendence of the accused the examination of the accused us 313 Cr
PC is mandatory
The examination of a lawyer would not be sufficient complaince with the ate of the mid provision
473 B BibhWi Bhushen Dat GWM  Aar
vs State of West BeW AIR 19 SC 381 119 2 SCR 104 referred to
469 In that case this court pointed out that the privilege of making a statement under Section 342 of the old code is personal to the accused
This requirement cannot be satisfied by examining his pleader in his place as the right of the pleader to represent the accused does not extend to the pleader answering questions under section 342 now 313 Cr
PC 473 E This court set aside the impugned order and directed the trial magistrate to pass appropriate orders in regard to the examination of the respondent under section 313 1 b Cr P C 474 D