BIMAL KUMAR GUPTA Vs. CHANDI CHARAN

JUDGEMENT

(1.) THIS Rule is directed against an order passed by a learned Metropolitan Magistrate, Calcutta on the 7th September 1981 in Case No.C-2460 of 1981 under section 427 Indian Penal Code in which the present petitioner happens to be an accused. It appears that on the aforesaid date the petitioner appeared before the learned Magistrate through a lawyer and filed a petition under section 205 Criminal Procedure Code with a prayer that he may be represented by an Advocate. On the same date, this prayer was opposed on behalf of the complainant and the Magistrate fixed 9th November 1981 for hearing the petition filed under section 205 Indian Penal Code and also directed that the accused should appear on the date so fixed. It is against this order for personal appearance of the petitioner before the learned Magistrate that he has come up in revision contending that it is a settled principle of law that in a summons procedure case, other than those involving moral tempetude the Court should not insist on personal appearance of the accused unless it is necessary ill the interest of justice.

(2.) THERE cannot be any manner of doubt that section 205(2) Criminal Procedure Code gives enough discretion to a Magistrate to direct the personal appearance of the accused. The question therefore is whether in the instant case the learned Magistrate was right in insisting on the personal appearance of the petitioner on the date of hearing the petition under section 205 Criminal Procedure Code. It does not appear to me that there was any reasonable ground to insist on such appearance nor the learned Magistrate has condescended to record why he considered the personal attendance of the petitioner before him necessary on such date. The learned - Advocate appearing for the State was also unable to support such order passed by the learned Magistrate. In the circumstances, I am disposed to hold that the personal appearance of the petitioner need not be insisted at the time of bearing the petition under section 205 Criminal Procedure Code and the order to that effect passed by the learned Magistrate is liable to be set aside. However, it must be noted that this order certainly does not fetter the discretion conferred upon the Magistrate under section 205(2) Criminal Procedure Code to direct or even enforce the personal appearance of an accused at subsequent stages if it is considered necessary by him. The Rule is therefore made absolute and the order passed by the learned Magistrate insisting on the personal appearance of the petitioner on the date of the hearing of the petition under section 205 Criminal Procedure Code is set aside. The learned Magistrate shall dispose of the case as expeditiously as possible. Petition set aside