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1970 DIGILAW 149 (MP)

Makhaniya v. Badri Prasad

1970-11-27

S.M.N.RAINA

body1970
ORDER S.M.N. Raina, J. This is a revision petition against an order of the trial Magistrate directing the applicant to appear personally in the Court and the execute a bond. Non-applicant No. 1 Badriprasad filed a complaint against the applicant and non-applicants Nos. 2 to 4 under section 427, Indian Penal Code in the Court of the trial Magistrate. The trial Magistrate issued summonses against the applicant and non-applicants Nos. 2 to 4. On an application submitted on behalf of the applicant she was granted exemption from appearance under section 205, Criminal Procedure Code. Subsequently, the trial Magistrate directed the applicant to appear in Court to furnish a bond for her appearance. Being aggrieved by this order the applicant has come up in revision before this Court. The contention of the learned counsel for the applicant is two-fold. His first contention is that as the applicant had been granted exemption under section 205, Criminal Procedure Code the Magistrate should not have directed her to appear in person before the Court. I do not, however, find any substance in this contention because under sub-section (2) of section 205, Criminal Procedure Code the Magistrate has a discretion to direct personal attendance of the accused at any stage of the proceeding. The next contention of the learned counsel is that as the applicant was granted exemption from appearance she could not be called upon to furnish a bond. In support of his contention he has relied upon the decision of the Allahabad High Court in Gambhir Kumari v. Bishambhar Nath Soni AIR 1955 SC 125. It was held in that case that there is nothing in the Code of Criminal Procedure which provides that security be demanded from an accused person who is exempted from personal attendance at the hearing of a case. With great respect I must say that I am unable to agree with this view. The following observations in paragraph 2 of the judgment indicate what weighed with the learned Judge in coming to the aforesaid conclusions: Personal bond and sureties are required when a person is released from custody. If a person is not in custody no question of granting bail can arise and, therefore, no occasion to demand security. It appears that the provisions of section 91 of the Code of Criminal Procedure were not referred to in that case. If a person is not in custody no question of granting bail can arise and, therefore, no occasion to demand security. It appears that the provisions of section 91 of the Code of Criminal Procedure were not referred to in that case. The said section empowers the Court to require any person, for whose appearance or arrest it is competent to issue summons or warrant, to furnish a bond with or without sureties for his appearance in such Court. The object of this section is to secure the attendance of the witnesses and the accused persons before the Court for the purpose of inquiry or trial. It is no doubt true that an order under this section can be passed only when the person concerned is present in Court. But a person who has been granted exemption from personal appearance under section 205 may be treated as present for the purposes of this section, because the appearance of his pleader is for all practical purposes to be treated as appearance by him. I am, therefore, of the view that a Magistrate is competent to direct an accused to furnish a bund under section 91 even though he has been granted exemption from appearance under section 205, Criminal Procedure Code. Apart from this, as pointed out above, under sub-section (2) of section 205, Criminal Procedure Code the Magistrate has a discretion to direct the attendance of an accused, who has been granted exemption, in Court on a particular day for a particular purpose. When the accused appears he can be directed to furnish a bond under section 91, Criminal Procedure Code. It may be mentioned here that in Reg. v. Lallubhai Jassubhai Bombay High Court Reports Criminal, Vol. V, page 64 it was held that in a case where the personal attendance of an accused is dispensed with a recognizance bond should be taken from him, if necessary. There is, therefore, no good reason to interfere with the order of the trial Magistrate. The petition, therefore, fails and is hereby summarily dismissed Emperor v. Bashir AIR 1929 All. 267.