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1993 DIGILAW 34 (CAL)

Bulbul Guha v. Durga Prasad Ghosh

1993-01-20

Rabin Bhattacharyya

body1993
Order: This Criminal Revision is directed against an order passed by the Chief Judicial Magistrate, dated 6th of March, 1992 in Complaint Case No. 561 of 1991. 2. A short synopsis of the fact reveals that the petitioner for purchase of second-hand vehicle No. WR-02-2642 at a list price of Rs. 40,000/- together with higher charges entered into an agreement. The chaque drawn in favour of the company was returned for insufficiency of fund. The filing of the complaint by the Company js the result of refusal to pay the sum demanded by the Advocate on its behalf. The exemption sought for by the revisionist on the ground of her sex under Section 205 of the Code of Criminal Procedure, since refused by the learned court below, this revision by her, where she has prayed for renewal of her personal attendance in court be exempted. 3. The moot point for decision in the revision is, if the order complained of is revisable by the court of revision. 4. The learned Advocate Mr. S. K. Deb, appearing for the revisionist, has contended that the order passed by the learned Chief Judicial Magistrate, refusing the revisionist to be represented through her lawyer on the date of evidence and also on the date of her examination under Section 313 of the Cr. P. C. is necessarily foul of law. 5. According to him, the preface to Section 205 of the Cr. P. C. confers power on the Magistrate to exempt personal attendance of the accused and permits her to appear by her pleader if he sees reasons so to do. 6. The materials in the instant case are so weighty where personal attendance should be dispensed with and she may be permitted to appear through her pleader. It is needless to repeat that the revisionist is a female who could seek protection under Section 205 of the Code of Criminal Procedure. An appearance through pleader should normally be allowed unless the personal attendance of the accused is necessary in the interest of justice. Instances are not rare, but many, where technical cases not involved in moral turpitude the court should invariably exempt the accused from personal attendance where the accused happens to be a busy businessman, industrialist, ladies, old, sickly persons, factory workers and labourers. 7. The instant case involves the non-encashment of the cheque issued by the revisionist who is a lady. Instances are not rare, but many, where technical cases not involved in moral turpitude the court should invariably exempt the accused from personal attendance where the accused happens to be a busy businessman, industrialist, ladies, old, sickly persons, factory workers and labourers. 7. The instant case involves the non-encashment of the cheque issued by the revisionist who is a lady. The offence complained of more or less technical where such exemption be allowed. True, it is that offences which are of a serious nature involving moral turpitude and punishable with imprisonment for some length of time, the established status of the accused cannot be considered for granting exemption. 8. In my view, the present case does not come within the category aforementioned. The exemption accorded to the revisionist is very narrow in the sense that its operation is very limited. The order to attend the court on the date of evidence and also on the date of her examination under Section 313 of the Cr. P. C. is really penal for her. On the other hand, as canvassed by the learned Advocate for the opposite party, Mr. Susanta Banerjee, that the revisionist petitioner should attend the court as and when directed by the learned court. The argument so advanced weighs with me very much as I see reason in it which is the main-strand of Section 205 of the Cr. P. C. 9. There is no bar under the law to record the plea through an Advocate where personal attendance is not called for. Besides, under the Code of Criminal Procedure, an accused cannot be compelled to make any statement in his or her examination under Section 313, as the law affords the accused a right to leave it to the pleader concerned to make any statement. 10. In the background of the above, the personal attendance of the accused cannot be insisted upon. The case of State vs. Laxman, A.I.R. 1962 SC 1204=1962(2) Cr. L. J. 284 and there are other legions of cases which are still held to be the authorities. Their lordships held in those cases that personal attendance of the accused is not called for, which could be left to the pleader. The case of State vs. Laxman, A.I.R. 1962 SC 1204=1962(2) Cr. L. J. 284 and there are other legions of cases which are still held to be the authorities. Their lordships held in those cases that personal attendance of the accused is not called for, which could be left to the pleader. However, taking into consideration, the lock stock and barrel of the case before me, the personal appearance of the accused could be dispensed with who may be permitted to appear through her Advocate until further orders. 11. In the result, the revision succeeds. Application allowed.