S R JHUNJHUNWALLA Vs. B N PODDAR

JUDGEMENT

(1.) This application is directed against order dt.31-5-1986 passed by the Ld. Judicial Magistrate, Howrah in complaint case No.230C/85. By the impugned order the Ld. Magistrate rejected the prayer of the petitioner to be examined u/s.205 of the Cr. P.C. It appears from the impugned order that the petitioner filed a petition praying for allowing him to be represented by his lawyer and for permitting the 1d. Advocate representing him to take plea of not guilty. On perusal of the record of Ld. Magistrate it is found that this petitioner was directed to be present but he did not turn up and he held that in the absence of the accd. the Ld. lawyer cannot be permitted to take the plea of not guilty. In his view the presence of all the accd. is necessary for examination u/s.251 Cr.P.C. Accordingly, he rejected the prayer.

(2.) Mr. Roy appearing for the petitioner has challenged the finding of the 1d. Magistrate to the effect that it was necessary for the accd. persons to remain present while being examined u/s.251 Cr.P.C. It may be noted in this connection that the 1d. Magistrate did not indicate any other reason why the presence of the petitioner was necessary at the time of examination u/s.251 Cr.P.C. Section 251 appears in Chapter XX of the Code which provides for trial of summons cases by Magistrate. It lays down when in a summons case the accused appears or is brought before the Magistrate the particulars of the offence shall be stated to the accused and he shall be asked whether he pleads guilty or has any defence to make but it shall not be necessary to frame a formal charge. This provision has the object of simplifying the provisions for framing of charges. The question in the instant case arises whether a person granted exemption u/s.205 of the Cr. P.C. has to appear before the Ld. Magistrate while being examined u/s.251, S.205 Cr. P.C. being a general provision, from the scope of which, S.251 has not been excepted. Accordingly when an accd. seeks to plead guilty or not guilty, his presence is not a must if he has already been exempted u/s.205 Cr. P.C. In support of his contention Mr. Roy has also relied on a decision of this Court reported in 1976 Cri LJ 76. The court held that the scheme of the Code clearly envisages that in the interest of the accd. and in the interest of an expeditious trial and to eliminate hardship and harassment of the accd. The courts have been empowered to exempt accd persons from their personal attendance in court and to appear by a Pleader in the Courts of the trial u/s.205, Cr.P.C., provided that the Ld. Magistrate who issues the summons should exempt the accd. from such personal attendance and permit him to appear by a Pleader. Such appearance of the Pleader constitutes appearance of the accd. S.353 of the Code also provides that evidence can be taken in the presence of a Pleader when the attendance of the accd. has been dispensed with Judgment can also be delivered by the Court in the absence of the accd. where the sentence is one of fine only. On consideration of all these materials that the absolute proposition of law of a bar in limine that the accd. himself shall take the plea is not correct. He has also referred to a decision of Delhi High Court reported in 1985 Cri LJ 467. The Court held that where in a summons case personal appearance of the accd. was dispensed with in accordance with S.205 of the Code pleader can represent the accd. subsequently even as regards the plea to the substance of accusation u/s.251. It also noted that prescribed form of summons in the second schedule of the Code is also drafted keeping in view the provisions of S.251.

(3.) Mr. Safiulla appearing for the State drew my attention to sub-s.(2) of S.205 which lays down that the Magistrate enquiring into or trying the case may in his discretion at any stage of the proceeding direct the personal attendance in the manner hereinbefore provided. That in the instant case the Magistrate used his discretion and asked the petitioner to appear before him for being examined u/s.251. There is nothing wrong in it. This is not an abstract proposition of law but in the facts of the case when the 1d. Magistrate has directed the petitioner who was exempted u/s.205, Cr.P.C. from appearing before him, to appear he has to comply with such a direction by the ld. Magistrate. I have already noted that ld. Magistrate directed him to remain present only on the ground that he thought that the presence of the accd. was an absolute necessity while being examined u/s.251, Cr. P.C. The discretion of the ld. Magistrate must be exercised judicially. When he has exempted one accd. person from appearing before him during trial he must indicate good reasons why such exemption was being withheld. In the instant case that has not been done. In appropriate cases power under sub-s.(2) of S.205 can be profitably utilised but in the facts of this case the discretion used by the Id. Magistrate was founded on a wrong notice of law. In this connection we may also refer to the provisions of S.313, Cr.P.C. As per proviso to cl.(1)(b) of the said section, the Court may also dispense with the examination of any person whose personal attendance has been dispensed with by him. This also indicates that in taking the plea an accd. person can be examined in his absence through the ld. Advocate who is representing him u/s.205. In view of this position in law the impugned order is bad and is accordingly set aside. The ld. Magistrate is directed to examine the petitioner through his ld, Advocate u/s.251, Cr.P.C. This application is accordingly disposed of. Application allowed.