ADITYA PD BAGCHI Vs. JOGENDRA NATH MAITRA

JUDGEMENT

(1.) This is a revision by Aditya Pd. Bagchi against the order of the Sessions Judge of Allahabad confirming an order of a Special Magistrate of Allahabad dispensing with the presence of Jogendra Nath Maitra, accused opposite party in a trial under Section 500, Penal, Code. [1a]. The applicant filed a complaint against the opposite-party and the case was transferred to an Honorary Special Magistrate. The Magistrate issued a bailable warrant for the arrest of Jogendra Nath Maitra and fixed 12-7-1946, for the hearing of the case. The warrant was actually issued on 20-6-1946, and was served and Jogendra Nath Maitra was released on bail. On the Sate fixed for hearing, namely, 12-7-1946, Jogendra Nath Maitra did not appear personally in Court. An application was filed by his counsel on his behalf praying that his personal appearance be dispensed with on the ground that he was ill and was unable to attend the Court. The Magistrate, thereupon, ordered a summons to issue for the appearance of Jogendra Nath Maitra for the next date and permitted him to appear through counsel.

(2.) The matter first came up before a learned single Judge of this Court who referred it to a larger Bench in view of two important questions arising in the case. These questions are: 1. What is the precise extent of the jurisdiction possessed by a Magistrate to dispense with the personal attendance of an accused person under Section 205, Criminal P.C.? and 2. Whether the trial of an accused person in his absence must always be held to be null and void, even though the attendance of the accused person is dispensed with by the Court upon his own application?

(3.) The contention, on behalf of the applicant, is that a Magistrate is competent to dispense with the attendance of an accused person and to allow him to appear through a pleader only in those cases in which he issues a summons in the first instance and that if a warrant has been issued in the first instance a Magistrate cannot exercise the power of allowing an accused to appear through a pleader. On the other band, it is contended by the opposite-party that the fact that the Magistrate issues a warrant in the first instance does not deprive him of the power to dispense with the presence of the accused and to allow him to appear through counsel and that the Magistrate could do so by later issuing a summons. We are of opinion that neither of these contentions is correct.