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Sessions Case No. 1 of 1986, decided on 22nd September, 1986.

‑‑‑Ss. 540‑A, 205, 265‑D, 265‑E & 342‑‑Distinction between import of provisions of Ss.205 & 540‑A, Cr.P.C.‑‑Presence of accused cannot be dispensed with at the stage of examination of accused under S.342, Cr.P.C.

If the provisions of sections 265‑D and 265‑E, Cr.P.C. are read in juxtaposition with section 3342, Cr.P.C. it would show that presence of accused for reading of charge and recording of his plea is also mandatory. In such view of the facts it could, therefore, be easily observed that there is vast difference between the import of sections 205 and 540‑A of the Criminal Procedure Code. Section 205, Cr.P.C. authorises but limits the powers of a Magistrate to dispense with personal attendance of an accused and permits him to appear by his pleader throughout the proceedings where the Magistrate has issued summons for his attendance. Whereas section 540‑A, Cr.P.C. authorises a Judge or a Magistrate where two or more accused are facing trial or enquiry to dispense with personal appearance of an accused person temporarily and be represented by his counsel for the reason that he is incapable of remaining before the Court and appear in Court at later stage.

The law, it is true, provides for a trial to proceed in the absence of the accused, vide section 540‑A; but the section does not permit the trial to proceed without the presence of the accused at stages where under the law the presence of the accused is‑imperative. One of these stages is when the accused is required to be examined in accordance with the provisions of section 342, Cr.P.C. The Court cannot dispense with the presence of the accused at this stage.

While framing of a charge, recording plea, examination either under sections 342, Cr.P.C. and 340‑A, Cr.P.C. the presence of the accused is obligatory before the Court hence at that stages his presence under the provision of section 540‑A, Cr. P. C . cannot be dispensed with.

Crown v. Jahandad and others P L D 1954 Lah. 107 distinguished.

Aleluddin alias Addo Faraji and others v. Emperor A I R 1946 Cal. 482 ref.

‑‑‑Sa. 540‑A, 87 & 88‑‑Dispensing with personal attendance from Court‑‑Proceedings under Ss. 87 a 88, Cr.P.C. were being taken against absconding accused and stage of framing charge and recording of plea of applicant‑accused was not possible within period of next two months‑‑Case of accused applicant could possibly be bifurcated from other accused persons and taken up separately‑‑Accused on bail et his case was at its earlier formal stage, seeking permission for going abroad for treatment of his badly affected lung for two months grant benefit of S.540‑A, Cr.P.C. in circumstances.

Raja M. Afsar, S.P.P. for the State.

Ehsan‑ul‑Haq for Respondents.

Respondent No. 2 in person.

Date of hearing: 17th September, 1986.

By this application under section 540‑A of the Code of Criminal Procedure accused Noor Mohammad has requested for dispensing with his personal attendance from the Court for a period of twos months for getting treatment of his badly affected lung at abroad and be allowed to be represented by his counsel during trial of the case for the above-said period.

2. It may be observed that this accused alongwith so many other absconding and absent persons is facing trial for offences under sections 147, 148, 149, 302, 307, 353, 332, 333, 435, 436, 364‑A, 153‑A, 124‑A, 120‑B and 342, P.P.C. before this Court on its original side. Proceedings under sections 87 and 88 of the Code of Criminal Procedure against absconding accused are under progress so as to start with trial of the case expeditiously. Efforts are being made to ripe the case for framing of charge for such purpose the case has already been fixed on 24‑9‑1986.

3. In support of the application Mr. Ehsan‑ul‑Haq, Advocate appeared for accused whereas Mr. Raja M. Afsar, Special Public Prosecutor represented the State.

4. Mr. Ehsan‑ul‑Haq, Advocate while supporting the application referred to the Provisions of sections 540‑A and 205 of the Criminal Procedure Code. In addition thereto he relied on the case of the Crown v. Jahandad and others reported in P L D 1954 Lah. 107. Mr. Raja Muhammad Afsar, the learned S.P.P. appearing for the State did not repudiate the contention raised by Mr. Ehsan‑ul‑Haq but on the contrary candidly conceded the special circumstance of the case required extending of the concession to the accused who needed immediate medical treatment at abroad which would not hamper the further proceedings of the case as it can be proceeded with and the charge could be framed against him even in his absence and plea answered by his counsel.

5. The point which seriously worries me is whether in absence of the accused charge could be framed against this accused and further proceeding in the case be taken. In support of their contention only reliance was placed by the both counsel of the parties on the case of Crown v. Jahandad and others where it has been held as under:‑

"It seems necessary at the outset to take note of a legal point raised in this case on behalf of the Crown. It was contended that the accused ladies had been exempted from appearing in Court under section 205, Cr.P.C., but at the stage of questioning the accused persons under section 342, Cr.P.C., the presence of the ladies was not enforced and only their counsel was asked to make statement on their behalf. It was suggested that this constituted an illegality which vitiated the trial Reliance was placed in this connection on Ishwar Das v. Bhagwan Das. Adeluddin v. Emperor and In re: Nainamalai Korsan. The Madras is not very much in point, as all that was held by Spencer, J. in that case was that a written statement filed by an accused could not take the place of an examination under section 342, Cr.P.C. Where there was no proper examination of the accused under section 342, Cr.P.C., so that the accused had no opportunity to explain the evidence against him, it was held that the conviction should be set aside. In the Allahabad case, Bennet, J. pointed out that section 342, Cr.P.C., does not purport to be only in the interest of the accused persons. The purpose of the section, according to the learned Judge, is to enable the accused to explain any circumstances appearing in the evidence against him and the intention is to further justice and to enable the Court to give a correct decision. Under section 342, Cr.P.C. it was held the statement should be the personal statement of the accused and not a statement made on his behalf by an Advocate. In the Calcutta case, a Division Bench consisting of Lodge and Sen, JJ laid down that section 540‑A of the Code did not permit the trial to proceed without the presence of the accused at stages where under the law the presence of the accused is imperative, One of these stages is when the accused is required to be examined in accordance with the provisions of section 342, Cr.P.C., and the accused's presence at that stage should not be dispensed with. Actually, there was a misdirection to the jury by the trial Judge in that case and the conviction was set aside on that ground. The learned Judges also added that the conviction of one of the accused would be bad inasmuch as he was not examined in accordance with the provisions of section 342, Cr.P.C. It appears that Kamaruddin the accused in question, was produced before the trial Judge at the opening of the case. He was then segregated from the other accused and was presented by a pleader throughout. He was ultimately produced before the Court to hear the verdict and receive the sentence. It was the pleader whose statement on behalf of the accused was recorded under section 342, Criminal Procedure Code. The contrary view was taken by a Division Bench of the Bombay High Court, consisting of Beaumont, C.J. and Barlee, J., in Emperor v. Jaffar Cassum Moosa. It was held that section 342, Cr.P.C. must be read as subject to the provisions of section 205 and that the trial Magistrate is not bound to question the accused person under section 342, Cr.P.C., if the latter had been exempted from, personal appearance and appears by a pleader. A similar view prevailed with a Single Judge of the Rangoon High Court in Maung Po Nyein v. Haka Singh. There is also an earlier D.A. judgment of Bombay High Court reported as Dorabshah Bomanji Dubash v. Emperor, wherein it was ruled that the Court can act upon the plea given by the pleader of an accused whose attendance has been excused under section 342, Cr.P.C. That was a case tried under the summons case procedure and the relevant sections were sections 242 and 243, Cr.P.C., but the analogy seems to be apt. In Emperor v. Radha Raman, Mittra, a Single Judge of the Allababad High Court decided that if an error ids committed while applying the provisions of section 540‑A, Cr.P.C., the trial is not vitiated provided no prejudice has been caused to the accused. Apparently, however, in that case the stage for examination under section 342, Cr.P.C. had not yet arrived and, therefore, the authority is not pertinent to the question under discussion. In another Single Bench judgment of the Allahabad High Court reported as Bechu Chaube v. King Emperor, it was held that failure to apply the provisions of section 342, Cr.P.C. constitutes an error and not an irregularity and if does not prejudice the accused, may be condoned under the provisions of section 537, Cr.P.C., provided that it concerned matter of procedure rather than the mode of trial. The opinion was expressed in Emperor v. Mst. Jamal Khatun, that the appearance by a pleader after an order is passed under section 205, Cr.P.C., involved the performance by the pleader of all acts which devolved upon the accused in the course of the trial. The preponderance of authority, therefore, seems to be in favour of the proposition that the provisions of section 342, Cr.P.C., are controlled by those of section 205 of the Code.

Considering the language of section 205 of the Code, it is plain that throughout the trial, the Court need not insist upon the personal appearance of the accused unless for some reason it thinks otherwise. Reference in this connection may also usefully be made to the provisions of subsection (2) of section 366 of the Code of Criminal Procedure, which enacts that where the personal appearance of the accused .had been dispensed with, during the trial and the sentence is one of the fine only or he is acquitted, the judgment may be delivered in the presence of the pleader representing him. The conclusion is also strengthened by reference to the provisions of section 540‑A. We hold, therefore, that there has been no illegality or even irregularity in the trial consequent on the pleader being examined on behalf of the women accused in this case under section 342, Cr.P.C. The contention raised on behalf of the Crown must be repelled as unsound."

It may be pertinent to note that authority referred to hereinabove is relevant to dispensing with attendance of an accused under the provisions of section 205, Cr.P.C. which reads as under:‑

"205‑(1) Whenever a Magistrate issues a summons, he may, if he sees reason w to do, 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, end, if necessary, enforce such attendance in manner hereinbefore provided."

But in the instant case the application has been moved for dispensing with attendance of accused under section 540‑A, Cr.P.C. which section is not only different but distinguishable from section 205, Cr.P.C. which is evident from the case relied upon by the learned counsel themselves. However, before further proceeding with the case it would be also useful to reproduce section 540‑A, Cr.P.C:‑--

"540‑A.‑‑(1) At any stage of an inquiry or trial under this Code, where two or more accused are before the Court if the Judge or Magistrate is satisfied, for reasons to be recorded, that any one or more of such accused is or are incapable of remaining before the Court, he may if such 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 thinks 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."

A mere bare reading of sections 205 and 540‑A of the Cr.P.C. makes it clear that authority relied upon by the learned counsel is not relevant with the point involved in the case. But in my view the case of Aleluddin alias Addo Faraji and others v. Emperor reported in A I R 1946 (32) Cal. 482 solves the proposition. The point involved therein was whether presence of an accused could be dispensed with at the stage of the examination of an accused under section 342, Cr.P.C. where it has been categorically stated that at a stage where under the law presence of an accused is imperative before the Court it cannot dispense with presence of the accused. It would be profitable to reproduce the operative part of the judgment which reads as under:‑

"The law, it is true, provides for a trial to proceed in the absence of the accused, vide section 540‑A; but the section does not permit the trial to proceed without the presence of the accused at stages where under the law the presence of the accused is imperative. One of these stages is when the accused is required to be examined in accordance with the provisions of section 342, Cr.P.C. In my opinion, the Court cannot dispense with the presence of the accused at this stage."

With that it would be advantageous to reproduce sections 342, 265‑D and 265‑E of the Cr.P.C. which deal with recording of statements, framing of charge and plea of accused before dilating upon the issue:‑

"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 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 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 inquiry into or trial for, any other offences which such answers my tend to show he was committed.

(4) Except as provided by subsection (2) of section 340, no oath shall be administered to the accused."

"265‑D. If, after perusing the police reporter, as the case may be, the complaint, and all other documents and statements filed by the prosecution, the Court is of opinion that there is ground for proceeding with the trial of the accused it shall frame in writing a case against the accused."

"265‑E.‑(1) The charge shall be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make.

(2) If the accused pleads guilty, the Court shall record the plea, and may in its discretion convict him thereon.".

If the provisions of sections 265‑D and 265‑E are read, in juxtaposition with section 342, Cr.P.C. it would show that presence of accused for reading of charge and recording of his plea is also mandatory. In such view of the facts it could therefore, be easily observed that there is vast difference between the import of sections 205 and 540‑A of the Criminal Procedure Code. Section 205. Cr.P.C. authorises but limits the powers of a Magistrate to dispense with personal attendance of an accused and permits him to appear by his pleader throughout the proceeding where the Magistrate has issued summons for his attendance. Whereas section 540‑A. Cr.P.C. authorises a Judge or a Magistrate where two or more accused are facing trial or enquiry to dispense with personal appearance of an accused person temporary and be represented by his counsel for the reason that he is incapable of remaining before the Court and appear in Court at later stage. There seems to be a clear interpretation of section 540‑A, Cr.P.C. in the case of Adeluddin alias Addo Faraji and others v. Emperor reported in A I R 1945 Cal. 482. I have, therefore, no hesitation to arrive at the conclusion that while framing of a charge, recording plea, examination either under C sections 342 and 340‑A, Cr.P.C. the presence of the accused is obligatory before the Court hence at that stages his presence under the provision of section 540‑A, Cr.P.C. cannot be dispensed with.

5. In this case as still the proceedings under the provisions of sections 87 and 88 of the Criminal Procedure Code are being taken against the absconding or absent accused therefore, the stage of framing of the charge and record of plea of accused may not possibly fall within the period of next two months. However if the stage of framing of charge comes before expiry of the abovesaid period of two months the under subsection (2) of section 540‑A the case of the accused may be bifurcated from the others and be taken up separately. Indeed it would be harsh, on part of the Court to decline the benefit of section 540‑A, Cr.P.C. at this stage, when he is already on bail and the case is as its earlier formal stage.

6. For the reasons shown hereinabove I am inclined to allow the request of the accused and permit him to go abroad for treatment for a period of 2 months from the date of his departure from the country which shall be intimated to the Court by his counsel. During that period one of his counsel on the record shall make appearance on his behalf otherwise his bail bond shall be liable to forfeited and concession of bail earlier granted to him shall be recalled. However, to ensure his attendance before this Court after expiry of such period the accused has to execute surety or bond in the sum of Rs.50,000 (Fifty thousand only) and P.R. Bond in the like amount to the satisfaction of the additional Registrar of this Court.

7. This is the reasoning of my short order announced in open Court on 17‑9‑1986.

M.B.A. Application allowed.

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