- Bookmark
- Share
- CaseIQ
Begum Fejun v. State
Summary of Legal Opinion — Reference by Sessions Judge, Jodhpur (22-4-1954)
Factual and Procedural Background
On 28-6-1953 Govind Narain reported to the Sub-Inspector, Police Division B, Jodhpur that he had advanced a loan of Rs. 900 to Sahebjada Faijmohamad, who had mortgaged his house and executed a rent-note in favour of Govind Narain. The complainant obtained a decree for possession and arrears of rent on 13-1-1940 and was put in possession through the Court bailiff on 17-4-1953. The complainant alleged that Mst. Begum Fezun (widow of Taj Mohamed Khan) and Noor Mohamad Khan committed criminal trespass into the house and took possession of part of it; offences under Ss. 447, 448 and 379, I.P.C. were alleged. The police investigated and challaned Mst. Begum Fezun and Noor Mohamad under S. 448, I.P.C.
Before enquiry commenced, Mst. Begum Fezun applied under Section 205 CrPC to be excused from personal attendance on grounds that she was old and a pardanashin lady. On 20-7-1953 the Magistrate allowed her to appear by pleader. Prosecution evidence was recorded. When the Magistrate wanted to examine the accused under Section 342 CrPC, he ordered on 26-2-1954 that her advocate produce her in court. The accused challenged that order by a revision application to the Sessions Judge, Jodhpur, contending (among other things) that the matter was petty, akin to a civil dispute, that she had continued in possession for years, that her pleader could be examined under S.342 and that she should be exempted under S.205 up to conclusion of the trial because only a fine could follow. The Sessions Judge reported the matter with a recommendation that the accused should be allowed to appear by pleader up to the conclusion of the trial and referred the matter to the High Court by a report dated 22-4-1954.
Legal Issues Presented
- Whether the personal attendance of Mst. Begum Fezun may be dispensed with up to the conclusion of the trial under Section 205 CrPC.
- Whether, when personal attendance of an accused has been dispensed with under Section 205 CrPC, the accused's pleader may be examined by the Court under Section 342 CrPC in place of the accused.
Arguments of the Parties
Accused's Arguments (supported by her learned advocate)
- The case is petty and in the nature of a civil dispute; a criminal proceeding was initiated to dispossess her.
- She has been in possession of the property for many years and was never actually dispossessed by the Court bailiff.
- Her pleader could be examined on her behalf under Section 342 CrPC, and a charge could be framed in the same manner.
- Because, even if convicted, only a fine could be imposed, she should be exempted under Section 205 CrPC up to the conclusion of the trial.
Government Advocate's Arguments
- The Sessions Judge should not have made remarks on the merits/facts of the case in his report, as such remarks could prejudice the trial Court; the High Court should therefore avoid expressing opinion on the strength or weakness of the prosecution case at this stage.
- The advocate of the accused cannot be examined by the Court under Section 342 CrPC; consequently the accused must personally appear so she may be examined under that section. In support of this point reliance was placed on Ishwardas v. Bhagwandas (AIR 1934 All 693).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ishwardas v. Bhagwandas, AIR 1934 All 693 | Section 342 CrPC ordinarily requires a personal statement by the accused to enable explanation of circumstances in evidence; purpose is furtherance of justice so the Court can decide whether the accused committed the offence. | The court accepted that S.342 ordinarily contemplates personal examination of the accused but considered whether that rule is governed by Section 205 when the accused is permitted to appear by pleader. |
| Mt. Tirbeni… Applicant v. Mt. Bhagwati… Opposite Party, AIR 1927 All 149 | A Magistrate's refusal to excuse the personal attendance of a pardanashin lady was set aside; personal attendance may be dispensed with until there is sufficient evidence to suppose guilt. | Cited as authority supporting the power to dispense with personal attendance of a pardahnashin woman until sufficient evidence exists to warrant personal attendance. |
| Hirasingh v. State, AIR 1954 All 231 | The mere fact that an accused is a pardanashin lady does not entitle her to remain exempted from appearance all the time if her presence is required for proper conduct of the case. | Noted by the Court; used to emphasise that exemption under S.205 is not absolute and that Magistrate may later direct personal attendance under sub-s. (2) of S.205. |
| Rajrajeshwari Debi v. Emperor, 15 Cri LJ 281 (Cal) | Pardahnashin ladies were allowed to appear at inquiry and trial by pleaders, subject to their having to appear to hear sentence if convicted; personal attendance could be dispensed with until Sessions Judge's order. | Relied on to show practice of permitting pardahnashin accused to appear by pleader with conditions and to support dispensing with personal attendance in appropriate cases. |
| Harinarayan Chandra v. Emperor, AIR 1928 Cal 27 | Section 205 permits appearance by pleader to ensure proceedings are properly and legally conducted; "appear" does not necessarily imply personation of the accused. | Used to support the proposition that a pleader is to look after the accused's interests and that S.205 contemplates representation rather than literal personation. |
| Emperor v. Jamal Khatun, 14 Cri LJ 272 (Sind) | Section 205 allows the accused to appear by pleader and such appearance involves performance of acts which devolve upon the accused in the course of the trial, including answering examination under S.342. | Cited as direct authority for the proposition that a pleader's appearance under S.205 includes authority to answer the examination under S.342 on behalf of the accused. |
| Kandamanidevi v. Emperor, AIR 1922 Mad 79 | Both Magistrate and Sessions Judge have power to dispense with the personal attendance of the accused and permit him to appear by pleader during a Sessions trial; pardahnashin accused should not be compelled to appear publicly until conviction. | Relied on to show that a Sessions Judge has power to dispense with personal attendance during a Sessions trial and to protect pardahnashin accused from public appearance until convicted. |
| Emperor v. Jaffar Cassum Moosa… Accused, AIR 1934 Bom 212 | When S.205 is exercised to dispense with personal attendance and permit appearance by pleader, the Magistrate is not bound to question the accused personally; S.342 must be read subject to S.205. | Cited as authority directly supporting the view that S.342 is subject to S.205 and that the Magistrate need not personally question an accused who lawfully appears by pleader. |
Court's Reasoning and Analysis
The Court first acknowledged the Government Advocate's submission that the Sessions Judge should not have expressed views on the facts (to avoid prejudicing the trial) and declined to express any opinion on the strength or weakness of the prosecution's case.
The central legal question identified was whether the accused's personal attendance should be dispensed with until the conclusion of trial and, relatedly, whether a pleader may be examined under Section 342 CrPC when attendance is dispensed with under Section 205 CrPC.
The Government Advocate relied on Ishwardas v. Bhagwandas to contend that S.342 requires a personal statement by the accused and therefore the accused must personally appear. The Court accepted that S.342 ordinarily contemplates personal examination of the accused in order to explain circumstances appearing in evidence and that the section is designed for the furtherance of justice.
However, the Court proceeded to analyse the interplay between Sections 342 and 205 CrPC by reviewing earlier authorities from different High Courts. The reviewed authorities (including Harinarayan Chandra, Emperor v. Jamal Khatun, Kandamanidevi, Rajrajeshwari Debi, and the Bombay case Emperor v. Jaffar Cassum Moosa) supported the proposition that:
- Section 342 is subject to Section 205 CrPC;
- An appearance by a pleader under Section 205 may involve performance of acts which would otherwise devolve on the accused in the trial, and hence a pleader can, if willing, be examined under Section 342 in place of the accused for whom he appears;
- The Magistrate has power under Section 205 (and under sub-s. (2) of that section) to dispense with personal attendance and to require it later if the personal presence becomes necessary for the proper conduct of the case;
- Section 366(2) and the form of summons in Sch. V (as discussed in the opinion) further illustrate that personal attendance may be dispensed with up to certain stages, particularly where only a fine may follow.
Applying these authorities to the facts before it, the Court noted that the offence alleged (S.448 IPC) was not of a serious nature, the accused was about 70 years of age and a pardahnashin lady, and the Magistrate did not state that her personal statement was absolutely essential for certain reasons. The Court therefore concluded that the Magistrate should not have compelled her personal attendance simply for the purpose of her statement under Section 342 CrPC and that the pleader could be examined in her stead where personal attendance has been permissibly dispensed with.
On that basis the Court accepted the Sessions Judge's reference and directed the Magistrate to dispense with the personal attendance of the accused until such time as he thought she was liable to conviction and that a sentence of fine only would be inadequate.
Holding and Implications
Reference accepted. The Magistrate is directed to dispense with the personal attendance of the accused until he thinks she is liable to conviction and a sentence of fine alone is inadequate.
Direct consequences of the holding for the parties:
- The accused, Mst. Begum Fezun, is entitled to remain exempt from personal attendance at the trial for the present; she may continue to appear by her pleader unless and until the Magistrate later directs her personal attendance.
- The Magistrate is instructed that, in cases where personal attendance has been lawfully dispensed with under Section 205 CrPC, the pleader appearing for the accused can be examined under Section 342 CrPC in place of the accused, and personal attendance should not be ordered merely to secure the accused's statement where the circumstances do not make personal presence essential.
Broader legal implication (as stated in the opinion): the Court held that Section 342 CrPC must be read subject to Section 205 CrPC, and therefore a pleader who appears for an accused under S.205 may be examined under S.342 in place of the accused. The opinion does not purport to set out any rule beyond this interpretation and confines itself to directing the trial Court's procedure in the particular circumstances presented.
Note: This summary is prepared strictly from the contents of the provided opinion and does not add facts or inferences not present in that text.
1. This case comes on a reference made by the Sessions Judge, Jodhpur, by his report dated 22-4-1954. The facts giving rise to it are that on 28-6-1953 one Govind Narain made a report to the Sub-Inspector Police, Division B Jodhpur that he had advanced a loan of Rs. 9001 to Sahebjada Fejmohamad of Jodhpur and Faijmohamad had therefore mortgaged his house with him for the said amount. He had also executed a rent-note in favour of the complainant. On 13-1-40 the complainant got decree for possession of the house and also for arrears of rent. On 17-4-53 he was put in possession of the house through the bailiff of the Court. It was alleged by him that one Mt. Begum Fezun widow of Taj Mohamed Khan and Noor Mohamad Khan made a criminal trespass into his house and took possession of certain portion thereof and therefore, it was prayed that they should be dealt with for committing offences under Ss. 447, 448 and 379, I.P.C The police investigated into the matter and challaned Mst. Begum Fezun Bibi and Noor Mohamad under S. 448r I.P.C
2. Before the commencement of enquiry an application was presented by Mt. Begum Fejun to dispense with her personal attendance in the Court under Section 205 of the Cr PC on the ground that she was old and also a pardanashin lady. On 20-7-1953, that application was granted and she was allowed to appear by a pleader. Thereafter the prosecution evidence was recorded. The Court wanted to examine the accused under Section 342 of the Cr PC On 26-2-1954 her advocate was therefore ordered to produce her in the Court on the next date of hearing. Against this order the accused presented an application in revision in the Court of the Sessions Judge, Jodhpur. It was urged there that the case against the accused was a very petty one, that it was in the nature of a civil suit and a criminal case was started just to dispossess her from the property. It was also urged that she was continuing in possession of that property for a number of years and she was never dispossessed by the Court bailiff. It was further contended that in a case like this her advocate could be examined on her behalf under Section 342 of the Cr PC and that a charge could also be framed in the same manner. It was prayed that in such a case even if the accused was convicted there could only be a punishment of fine and therefore, she should be exempted under Section 205 of the Cr PC right upto the conclusion of the trial. These arguments have found favour with the learned Sessions Judge and therefore, he has reported the case with the recommendation that the accused Mt. Begum Fejun should be allowed to appear by her pleader right upto the conclusion of the trial.
3. Learned advocate for the accused has supported the reference while learned Government Advocate contests it.
4. It is urged by the learned Government Advocate that the learned Sessions Judge ought not to have made any remark on the facts of the case because it is likely to prejudice the trial Court. It is also requested that this Court also should not go into the facts of the case. This argument is quite correct and I would not express any opinion about the strength or the weakness of the prosecution case at this stage.
5. The only point to be considered is whether the attendance of the accused Mst. Begum Fezun in the trial Court may be dispensed with right upto the conclusion of the trial. Learned Government Advocate has urged that the advocate of the accused cannot be examined by the Court under Section 342 of the Cr PC and that the accused must therefore personally appear in the Court so that she may be examined, according to the provisions of the said section. In support of his argument he has referred to the case of ‘Ishwardas v. Bhagwandas’ AIR 1934 All 693 (2) (A). In that case it was observed that
“Section 342 does not purport to be only in the interest of accused persons. On the contrary it is laid down that the purpose is to enable the accused to explain any circumstances appearing in the evidence against him. The accused may or may not be able to explain those circumstances, and if the accused is not able to explain the circumstances then the Court may draw a presumption against the accused. The intention of the provision in my opinion is for the furtherance of justice and to enable the Court to decide the issue in a criminal case, which is always: “Did the accused commit the offence charged?””
6. It was further observed that a statement under Section 342 of the Cr PC should be a personal statement by the accused and not a statement made on his behalf by an advocate. I respectfully agree with the view so far as it says that S. 342 contemplates that ordinarily the accused himself should be examined by the Court in order to enable him to explain the circumstances appearing in the evidence against him. Such examination may be made at any stage of the enquiry or trial without previously warning the accused and therefore the intention of this provision is certainly for the furtherance of justice, but the question arises whether this section would be governed by Section 205 of the Cr PC when the accused is permitted by the Court to appear by a pleader.
7. In an earlier case of ‘Mt. Tirbeni…Applicant; v. Mt. Bhagwati…Opposite Party.’, AIR 1927 All 149 (B) another learned Judge of the same High Court had set aside the order of a Magistrate who had refused to excuse the personal attendance of a pardanashin lady and directed him to dispense with the attendance of the accused until such time as there was sufficient evidence on record to give him reason to suppose that she was guilty of the offence of which she was charged.
8. Learned Government Advocate has next referred to the case of ‘Hirasingh v. State’, AIR 1954 All 231 (C). In that case it was observed that
“the mere fact that an accused is a ‘pardanashin’ lady does not entitle her to remain exempted from appearance all the time even if her presence is required for a proper conduct the case.”
9. In that case the question whether a pleader of the accused exempted under Section 205 of the Cr PC could be examined under Section 342 of the Cr PC did not come for discussion. It is true that a person who is exempted from personal attendance under S. 205 cannot claim as a right that he cannot be ordered to appear personally in the Court at a later stage. Sub-s. (2) of S. 205 clearly lays down that the Magistrate enquiring into or trying the case may at any stage of the proceedings direct the personal attendance of the accused even though his personal attendance may have been dispensed with earlier under Sub-s. (1). In the present case it is not a point in dispute that the Magistrate could not in any circumstance direct the personal attendance of the accused, but the question involved is whether the Magistrate can examine the pleader of an accused under Section 342 of the Cr PC if the personal attendance of the accused himself is dispensed with. In my opinion the Court may examine the pleader in such a case if the pleader is willing to give a statement on behalf of the accused for whom he appears. In the case of ‘Rajrajeshwari Debi v. Emperor’, 15 Cri LJ 281 (2) (Cal) (D), the accused who were respectable pardahnashin ladies were charged with offences under Ss. 307, 308, 325 and 326, I.P.C The learned Judges allowed them to appear “both at the inquiry and at the trial by their pleaders, subject to their having to appear before the Court to hear the sentence passed, should the case be proved against them and the trial ended in a conviction. It was further ordered that if the accused be committed to the Court of Session, the personal attendance of the ladies may be dispensed with till the Sessions Judge passed his order.
10. In another case viz. ‘Harinarayan Chandra v. Emperor’, AIR 1928 Cal 27 (E), the learned Judges of the same High Court observed as follows:
“In S. 205 the word “appear” seems to convey a double meaning, seemingly connoting not merely authority to act and plead, but also authority to personate the accused; but there is nothing to show that double meaning was intended by the Legislature. It is necessary that someone should be present at the trial to look after the interests of the accused; and all that S. 205 provides is that, when the Magistrate sees fit, a person against whom a summons has issued may be exempted from personal appearance, provided he engages a pleader to attend and see that the proceedings are properly and legally conducted.”
11. Similarly, in the case of ‘Emperor v. Jamal Khatun’, 14 Cri LJ 272 (Sind) (F), it was observed that:
“Section 205 of the Cr PC allows the accused to appear by a pleader and such appearance involves the performance of all acts which devolve upon the accused in the course of the trial, such as answering the examination by the Court under S. 342, or pleading, or refusing to plead to the charge under S. 2, 55.”
12. A support to this view was taken from the terms of S. 366(2) by saying that:
“The said section contemplates the absence of the accused upto the stage of judgment and even after that stage where the judgment is one of acquittal or one awarding a sentence of fine.”
13. A further support was given by the form of summons to an accused in Sch. V, Criminal Procedure Code, whereby the accused is “required to appear in person or by pleader”. It was observed that “this implies that the pleader who appears represents the accused for the purpose of answering to the charge and this would include answering questions put by the Magistrate on the case made out by the prosecution.”
14. Similarly in the case of ‘Kandamanidevi v. Emperor’, AIR 1922 Mad 79 (1) (G), it was held that not only a Magistrate but even the Sessions Judge has power to dispense with the personal attendance of the accused and permit him to appear by pleader during the Sessions trial. In that case the trial Court was directed that the accused who were pardahnashin ladies should not be compelled to appear in public at least until they were convicted.
15. The learned Judges of the Bombay High Court have also taken similar view in the case of ‘Emperor v. Jaffar Cassum Moosa…Accused.’, AIR 1934 Bom 212 (H).
16. In that case it was observed that:
“Where the Magistrate exercises the power given to him by S. 205 of dispensing with the personal attendance of the accused and permits him to appear by his pleader, the Magistrate is not bound to question the accused personally. S. 342 must be read subject to the provisions of S. 205.”
17. Thus a review of the above cases makes it quite clear that S. 342 is subject to the provisions of Section 205 of the Cr PC, that the appearance of a pleader under Section 205 of the Cr PC involves the performance of all acts which devolve upon the accused in the course of the trial and therefore he can be examined under Section 342 of the Cr PC by the Court, in place of the accused for whom he appears. Section 366 of the Cr PC, further makes it clear that the personal attendance of the accused during the trial may be dispensed with by the Court even till the delivery of the judgment and his conviction if the sentence is one of fine only. I do not therefore agree with the contention raised by learned Government Advocate that a pleader of an accused cannot be examined under S. 342 in a case where personal attendance of the accused is dispensed with under Section 205 of the Cr PC. In the present case it is clear that the offence under S. 448, I.P.C alleged against the accused is not a crime of a serious nature. It is also not in dispute that the accused is an old pardahnashin lady of about 70 years of age. Therefore the learned Magistrate who dispensed with her personal attendance should not have compelled her to appear simply for her statement under Section 342 of the Cr PC. The learned Magistrate does not say that her own statement is absolutely essential for certain reasons. Perhaps he was under the impression that her pleader could not be examined in her stead and therefore he directed her personal attendance. In such a case the Court may dispense with the attendance of the accused even till the delivery of judgment if only a sentence of fine is imposed. The reference made by the learned Sessions Judge is, therefore, accepted and the Magistrate is directed that he should dispense with the personal attendance of the accused until he thinks that she is liable to conviction and the sentence of fine is not adequate.
K.S.B
18. Reference accepted.
Alert