# BIBHUTI BHUSAN DAS GUPTA AND ANR v. STATE OF WEST BENGAL

- **Citation:** [1969] 2 S.C.R. 104
- **Court:** Supreme Court of India
- **Decided:** 1968-09-16
- **Case number:** Criminal Appeal No. • , 73 of 1966
- **Bench:** S. M. SnIBI, R. s. BACHAWAT, K. s. HEDGE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bibhuti-bhusan-das-gupta-and-anr-v-state-of-west-bengal-4553
- **Pages:** 9

## Headnote

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 prosecution 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 questions unde~ s. 342 cannot be delegated to a pleader. Though ss. 205 and
540-A which empower a Magistrate to dispense wit\! the personal appearance 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.
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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.
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## Text

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 prosecution 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 questions unde~ s. 342 cannot be delegated to a pleader. Though ss. 205 and
540-A which empower a Magistrate to dispense wit\! the personal appearance 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.
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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.
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
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73 of 1966.
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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 resident 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 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 s. 499 I.P.C.
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 134 ( 1 )( c) of the Constitution.
All the courts concurrently found that the publication was not
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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 s. 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
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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 CT/69-8
106
SUPREME COURT REPORTS
(1969] 2 S.C.R.
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 v. State of Punjab(') 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. 342.
On December 21, 1962 the lawyer representing Bibhuti Dasgupta filed a
petition stating that he was undergoing an operation in Calcutta
and that the lawyer may be examined on his behalf under sec.
342.
On the same date the Magistrate allowed the application
11nd 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 s. 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 arres.t.
Thereafter the inquiry or trial proceeds in
lus 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 :-
(!) i1965i 3 S.C.R. 235.
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B. D. GUPTA V. WEST BENGAL (Bachawat, J.)
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 accus1xl 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 h<'reby 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
th.inks 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
pleaaer in place of the accused is sufficient compliance with the
sectton 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 v. Mrs. Fernandes('). 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
(!} A.LR. 1962 Cal. 203.
108
SUPREME COURT REPORTS
(1969] 2 S.C.R.
accused under sec. 342. 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 ma1ority
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 ;utlicient compliance with the provisions of
s. 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 s. 366(2).
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 s. 342.
'That section is subject to and controlled by s. 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 s. 342. Having considered
all these arguments we are not convinced that pleader can be
·C)lamined in place of the accused under s. 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 inquizy 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)."
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B. D. GUPTA v. WEST BENGAL (Bachawat, J.)
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 refuse.s 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 v.
Laxman Jairam) (1). Under sub-sec. (4) no oath is administered to him. The reason is that wiien 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 v. State of
Madhya Bharat)( 2 ). 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. 342. Under sub-section (3)
of s. 342 his answers may be put in evidence for or against him
in othet 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. 201.
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. 364. 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 v. Emperor(3 )
that:
(I) [19621 Supp. 3 S.C.R. 230.
(2) A.LR. 1953 S.C. 468, 470.
(3) A.LR. 1923 Cal. 470, 481.
110
SUPREME COURT REPORTS
[1969) 2 S.C.R.
" ... 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.
366(2) 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 s. 342 is intended to be a substitute for the evidence which he can give as a witness under sec. 342A. 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 s. 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 sectiQn must be of the accused person and not his pleader.
In Dorabshah v. Emperor(') the Bombay High Court held
that where the accused is permitted to appear by his pleader
(1) A.l.R. 1926 Born. 218.
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B. D. GUPTA v. WEST BENGAL (Bachawat, J.)
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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, 25 lA, 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. 342.
The examination under th~ 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 s.
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. v. Corporation of Calcutta(')]. Exceptional
cases apart, only the accused in person can be examined under
s. 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. 342.
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-exantination or defective examination under sec. 342 is not
a ground for interference unless prejudice is established.
[see
Tilakeshwar Singh v. The State of Bihar( 2 ) K. C.
Mathew v.
The State of Travancore-Cochin( 3 ), Ram Shankar Singh v. State
of 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. 342.
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 pleqder was examined on his behalf at his express request.
The Magistrate delivered judgment on April 17, 1963.
(l) l.L.R. [1959] 2 Cal, 622.
(2) [19551 2 S.C.R. 105.
(3) [195512 S.C.R. 1057, 1061-2.
(4) [1962] Supp. 1. S.C.R. 49, E4
112
SUPREME COURT REPORTS
[1969] 2 S.C.R.
On that date Bibhuti Dasgupta was present in Court. He made
A
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 preB
judice 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.
Y.P.
Appeal dismissed.
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