A.S.K. RAMA IYER Vs. T. KANNAN

JUDGEMENT

(1.) THESE petitions have been filed to transfer C.C. Nos. 103 and 104 of 1979 from the file of the Judicial First Class Magistrate, Virudhunagar, to some other Court of competent jurisdiction, outside Ramanathapuram District. The petitions have been filed by the accused in both the cases. The petitioner would appear to be a heart patient and therefore, he filed a petition under S. 205, Crl. P. C. to dispense with his personal appearance. As the complaints in both the cases have been filed for alleged defamation by the petitioner (accused), the identity of the accused is not in question and his presence in Court was not necessary. In fact, the learned counsel for the complainant, who is the respondent before me. fairly concedes, that the complainant did not insist on the appearance of the petitioner in the Court below. Whilst so, the learned Magistrate has refused to allow the petition filed under S. 205, Crl. P. C. to permit the counsel for the petitioner to represent him. When called upon to submit a report in regard to his attitude in this case, the learned Magistrate had stated that he is "adopting a policy of not allowing petitions under S. 205, Crl. P. C. uniformly in all cases." The learned Magistrate has no right to lay down any such inflexible policy for himself, nor has he any right to "abrogate" the provisions of S. 205, Crl. P. C. The powers of the Court under S. 205 of the Crl. P. C. have to be exercised in each case where the provisions are invoked, having regard to the circumstances of each case, the condition of the accused, the necessity for his personal attendance and the interests of justice. To lay down in advance what the learned Magistrate is "pleased" to call a 'policy' is wooden, mechanical, arbitrary and violative of the provisions of S. 205, Crl. P. C. I say that such a general policy is I violative of the provisions of S. 205, because that provision contemplates the Court dispensing with the personal appearance of the accused and permitting him to appear by his pleader, if the Magistrate sees reason so to do. By laying down a general policy in advance, to which the learned Magistrate seems to adhere faithfully, blindly and undeviatingly, he has closed his eyes to reason and would appear to be determined to refuse permission to the accused to appear by his pleader as contemplated under S. 205, Crl. P.C. even if the accused is in death -bed. Such an attitude on the part of the learned Magistrate is gravely deprecated. He is expected to apply 'his mind to the facts of each case and decide them; The excuse put forward by the learned Magistrate is that, in "cases where special vakalat are allowed under S. 205 Crl. P. C. the parties have no interest in the speedy disposal of the cases." This is contrary to common sense and general experience. If the learned Magistrate insists on the accused attending the Court for every hearing, and the accused is physically incapable of attending the Court, as in the instant case, then an adjournment is necessarily sought and obtained, and, if refused, other methods, such as transfer petitions, may be resorted to and thereby the proceedings may be protracted. Hence the rationale behind the so -called 'policy' adopted by the learned Magistrate is irrational, and therefore the attitude of the -learned Magistrate in adopting a general policy in dismissing petitions under S. 205, Crl. P. C. is viewed with displeasure;

(2.) IN the circumstances, the two cases are withdrawn and transferred to the file of the Chief Judicial Magistrate, Madurai, to be transferred to the file of any First Class Magistrate, Madurai Town, or to be disposed of by himself if be so chooses to do.