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2002 DIGILAW 496 (CAL)

Tek Fu Tsang v. Sanjib Kanti Barman & State

2002-07-29

DEBIPRASAD SENGUPTA

body2002
JUDGMENT D. P. Sengupta, J.: It appears that in the present proceeding under section 138 of the N.I. Act, the present petitioner entered appearance and was released on bail. The petitioner filed an application under section 205 Cr.P.C. on 13.9.2001 with a prayer for being represented by his lawyer. Such application was fixed for hearing on 9.10.2001. It appears that such application was kept pending for a long time and from the order dated 23.4.2002 passed by the learned S.D.J.M., Alipore, it appears that the learned Magistrate fixed 25.6.2002 for recording plea of the accused person and the accused person was also directed to remain present on the said date. Since the accused could not appear on 25.6.2002, the learned Magistrate issued warrant of arrest against him. 2. It appears that the application filed by the petitioner under section 205 Cr.P.C. on 13.9.2001 is still pending before the learned Magistrate. Without disposing of such application, the learned Magistrate fixed up a date on 25.6.2002 for recording plea of the accused person. It is now settled law that for recording plea of the accused in such a case the presence of the accused is not compulsory and he can very well be represented by his lawyer. The learned Magistrate before fixing up the date for recording plea, should have disposed of the application under section 205 Cr.P.C. 3. In such circumstances, I dispose of the present application and direct the learned Magistrate to take up the application under section 205 Cr.P.C. immediately and to dispose of the same within a period of two weeks from the date of communication of the order. After disposing of such application under section 205 Cr.P.C. the learned Magistrate shall fix up a date for recording plea. If the prayer of the petitioner under section 205 Cr.P.C. is allowed, the learned Magistrate shall not insist upon presence of the accused petitioner for the purpose of recording plea. 4. It is further made clear that till such application under section 205 Cr.P.C. is disposed of, the warrant of arrest issued against the petitioner shall remain stayed. 5. The present application is accordingly disposed of. 6. Criminal section is directed to supply the certified copy of the order to the learned advocate appearing for the petitioner in course of this week, if applied for. Appeal disposed of with direction.