RAJA DHARRAJGIRILCHELA LATE RAJA NURSULGLRJI Vs. DHERWANGIR

JUDGEMENT

(1.) 1. The petitioner is the accused in C.C. No. 355 of 74 on the file of the Second Metroplitan Magistrate. Hyderabad. The respondent herein filed a complaint against the petitioner under Sec. 500 IPC. Under an order dated 16-10-74 the Magistrate dispensed with the personal attendance of the petitioner under Sec. 205 (I) Cr. P.C. and permitted him to appear by his pleader. Subsequently when the case was posted for the examination of the accused under Section 251 Crl. P.C. (old section.242) the petitioner's learned counsel appeared and filed in the Court and filed a petition under Crl. M. P. 1313/74 stating therein that under his Vakalath he was authorised by the accused to answer any question that might be put to him by the court and that he may be examined on behalf of the accused. It was represented in the petition that the petitioner Is aged 82 years that he is a resident of Bombay, and that he is generally sickly undergoing medical treatmant at Bombay. The learned Migistrate dismissed the petition and issued a bailable warrant for the personal attendance of the accused The revision is directed against the order dismissing the petition for dispensing with the personal attendance of the accused.

(2.) Section 251 reads: "When in summons case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him and he shall be asked whether he pleads guilty or has, any defence to make, but It shall not be necesiary to frame a formal charge." This Section, corresponds to Section 242 of the old Code under which the accused had to be asked if he had any cause to show as to why he should not be convicted. The object of the Section is merely to appreise the accused of the particulars of the offence and to just enquire from him whether he pleads guilty or if he has any defence to make. It is difficult to construe how the object of the Section Is defeated if a pleader duly authorised by the accused appears before the court In the place of the accused at the stage of Sec. 251 Cr. P.C. In Bibhut vs. State of W.B. (I) A.I.R. 1969. S.C. 381. the Supreme Court has pointed out that even In a case where the Magistrate has dispensed with personal attendance of the accused U/s 205 or 540-A of the old Procedure Code, a pleader cannot represent the accused for purposes of Sec. 342 of the old Procedure Code. Section 313 of the new Code is a substitute for the old Section 342. The examination of an accused under Sec. 313 (342 of the old Code) is not the same as the examination of the accused under Sec. 251 of the Code. The object of Sec. 313 is to enable the accused to explain any circumstances appearing in the evidence against him. The provision is designed to communicate to the accused of the Incriminating pieces of evidence against him and to give him an opportunity to explain such incriminatory circumstances. In Bibhuti case, the Supreme Court has pointed out as follows in para 9 of the judgment;

(3.) Moreover, the provisions of the new Code, are more liberal to the accused persons in petty-cases or summons cases. Sec, 206 provides for special summons in cases of petty offences, requiring the accused to appear in person or by pleader or even to plead guilty to the charge and transmit the plea in writing by poster by massenger. Section 313 which is a substitution for the old Section 342. contains an additional proviso, not con aloed in the previous Code. Under this proviso, the Court is empowered to dispense with the compulsory examination of the accused under Clause (b) of Section 313, if the case in question is a summons case and the court has dispensed with the personal attendance of the accused u/s 205 (I). The petitioner is aged 82 years. He is sickly and resides at a distant place like Bombay. The caie against him is a summons case Considering these ficts, the learned Magistrate rightly dispensed with his personal attendance u/s 205 (I) Cr. P.C. In the initial stage of the case It does not appear that there Is any expediency to compel the petitioner's presence for proceeding under Sec 251 Cr.P.C. The order of the learned Mrglstrate dismissing the Crl. M.P. 1313/74 is improper and unsustainable, and the same is accordingly set aside. The Magistrate Is directed to withdraw the bailable warrant Issued against the petitioner and permit the advocate of the petitioner to represent him In the proceeding under Sec, 251 Cr. P.C.