LexBIBHUTI BHUSAN DAS GUPTA AND ANR. versus STATE OF WEST BENGAL
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BIBHUTI BHUSAN DAS GUPTA AND ANR. v. STATE OF WEST BENGAL September 16, 1968 [S. M. SnIBI, R. s. BACHAWAT AND K. s. HEDGE, JJ.] Code of Criminal Procedure-Section 342-Pleuder if can be exa- . n1ined on behalf of accused-Mere non-examination of accused if vitiates trio!. In a defamation case, at the instance of the accused his personal appearance was dispensed with by the Magistrate under s. 540-A Cr. P.C. His advocate was examined under s. 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 s. 342 and whether the examination of the pleader in :place of the accused is sufficient compliance with ther section in a case where the Magistrate has dispensed with the JX'rsonal 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 s. 342 vitiates the trial, HELD : (i) The privilege of making a statement under s. 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 s. 342 is mandatory and imposes upon the court a duty to examine the accused at the close of the prose- cution case in order to give him an opportunity to explain any circum~ stances appearing against him in the evidence and to say in his defence ·what he wants to say in bis own \Vords. The answers of the accused under s. 342 is intended to be a substitute for the evidence which he ·Can give under s. 342-A and the privilege an.d duty of answering ques- tions unde~ s. 342 cannot be delegated to a pleader. Though ss. 205 and 540-A which empower a Magistrate to dispense wit\! the personal appear- ance of the accused do not expressly mention that the pleader cannot be examined un.der s. 342, it does not lead to the inference that the pleader can be so examined. [109 F, 110 G-H, 109 B; 110 C-D, 109 E; 110 F-HJ Dorabshah v. Emperor, A.I.R. 1926 Born. 218, disapproved. (ii) Under s. 537 the conviction and sentence are not reversible on account of any error, omission or irregularity in any proceedings durin~ the trial unless the error, omission or irregularity Qas in fact occasioned a failure of justice. Therefore the mere non-examination of the accused in the present case, under s. 342 was not a ground for interference since no prejudice was established. [111 FJ Tilakeshwar Singh v. The Sta(e of Bihar, [1955] 2 S.C.R. 105, K. C. A B c D E F G Mathew v. The State of Travancore-Cochin, [1955] 2 S.C.R. 1057 and Ram Shankar Singh v. State of West B.~ngal, [1962] Supp. 1 S.C.R. 49, 64, referred to. H • • I . CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. • , 73 of 1966. ' • • A B c D E F B. D. GUPTA v. WEST BENGAL (Bachawat, I.) 105 Appeal from the judgment and order dated March 31, 1965 of the Calcutta High Court in Criminal Revision No. 921 of 1963. P. K. Chatterjee, for the appellants. B. K. Bhattacharya, G. S. Chatterjee for P. K. 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 resi- dent of Bhuni, P. S. Patanda, district Singhbhum they published a letter in the weekly issue of Mukti dated the 4th Asar, 1388 B.S. 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 I.P.C. They were tried jointly by Shri S. M. 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 agai
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