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2003 DIGILAW 479 (ALL)

Pooran Singh v. State of U. P.

2003-03-04

K.N.SINHA

body2003
K. N. SINHA, J. ( 1 ) THE present petition has been filed for issue of a writ in the nature of certiorary for quashing the impugned order dated 16/1/2003 passed by the District and Sessions Judge, Muzaffamagar (Annexure 5 to the writ petition ). ( 2 ) THE brief facts giving rise to the petition are that the respondent No. 4 filed an F. I. R. , which was registered as Case Crime No. 69 of 2001 under Sections 420, 467 and 468 IPC. After investigation a final report was submitted. The respondent No. 4 filed a protest petition. The said final report was rejected and the petitioners were summoned, against which a Misc. Application under Section 482 Cr. P. C. was moved but the same was rejected by this Court on 15/9/2002. ( 3 ) AFTER rejection of the Misc. Application under Section 482 Cr. P. C. the petitioners moved an application under Section 239 Cr. P. C. with the prayer that a false case was lodged against them and the petitioners be discharged. Another application was moved by the petitioners under Sections 205 and 317 Cr. P. C. with the prayer that the personal attendance of the petitioners be exempted and they be allowed to be present in court through their counsel. Both the applications were rejected by the respondent No. 3 by the order dated 12/11/2002. A revision against the said order was filed, which was decided by the respondent No. 2 (Annexure 5 to the writ petition ). By way of the present writ petition the order directing the personal appearance of the petitioners has been challenged on the ground that the revisional court has committed illegality in giving direction to the Magistrate that he shall hear both the parties on the application under Section 239 Cr. P. C. The direction for the appearance is also challanged as the same is said to be against the law. ( 4 ) I have heard the learned counsel for the petitioners and the learned A. G. A. and also perused the impugned orders. It would be pertinent to note that when the cognizance was taken by the Magistrate and summonses were issued, it was the duty of the accused to have attended the court in compliance of the said order. It would be pertinent to note that when the cognizance was taken by the Magistrate and summonses were issued, it was the duty of the accused to have attended the court in compliance of the said order. The order of the Magistrate is Annexure 4 to the writ petition whereby the learned Magistrate rejected the application under Section 239 Cr. P. C. and issued non-bailable warrants. A perusal of the order of the learned Magistrate and that of the revisional court shows that the Magistrate had taken cognizance by the order dated 30/7/ 2002. It appears that against the said order a Misc. Application before this Court was filed, which was rejected. The revisional court has also observed in its judgment that: In the present case non-bailable warrant was issued after the summons issued by the court stands served on the accused persons ( 5 ) THE learned revisional court has also quoted about the personal service of the summons on the accused petitioners. Once the summonses were served on the petitioners, they did not obey the summons of the court, the Magistrate had then no option but to issue the warrant. There is no explanation of the petitioners about their disobeying the summons of the court. ( 6 ) THE application for exemption was moved under Sections 205 and 317 Cr. P. C. The provisions of Section 205 Cr. P. C. are quoted as follows: 205: Magistrate may dispense with personal attendance of the accused (1) whenever a magistrate issues a summons, he may, if he sees reasons so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. (2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided. ( 7 ) A bare perusal of this provision shows that when the Magistrate issued summon and if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear through his pleader. This discretion could have been availed of by the petitioners when the summonses were served on them. In that event they should have approached the concerned court for exempting their personal attendance, which they did not do. This discretion could have been availed of by the petitioners when the summonses were served on them. In that event they should have approached the concerned court for exempting their personal attendance, which they did not do. ( 8 ) THE provisions of Section 317 Cr. P. C. are quoted below: 317: (1) Provision for inquiries and trial being held in the absence of accused in certain cases (1) At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may at any subsequent stage of the proceedings, direct the personal attendance of such accused. (2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, he may, if he thinks fit and for reasons to be recorded by him, either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately. ( 9 ) EVEN under the powers of the Judge or the Magistrate holding inquiry or trial he may dispense with the personal attendance of the accused, if he is satisfied that the attendance of the accused is not necessary he shall record the reasons for the same. Similarly, for these provisions the petitioners never approached the court for invoking the same when they moved under Section 239 Cr. P. C. ( 10 ) THE learned counsel for the petitioners has relied upon the case of Smt. Sita Kumari v. Lailt Kumar and another. I have perused the above authority and find that it has been held so far as the question of dispensing with the personal attendance of the accused under Section 205 (1) Cr. P. C. is concerned, it is a matter of exercise of power between the Magistrate and the accused. Of course, this discretion should be exercised reasonably. I have perused the above authority and find that it has been held so far as the question of dispensing with the personal attendance of the accused under Section 205 (1) Cr. P. C. is concerned, it is a matter of exercise of power between the Magistrate and the accused. Of course, this discretion should be exercised reasonably. As I have already mentioned eailier, the petitioners after service of the summons never appeared before the Court to pray for invoking this discretion in their favour. So was their case under Section 317 Cr. P. C. So far as the exemption of the personal attendance by this Court is concerned, it can be done only under its inherent powers under Section 482 Cr. P. C. The petition under Section 482 Cr. P. C. has already been dismissed and this discretion cannot be granted by the revisional court. ( 11 ) THUS on facts and law both the petitioners are not entitled to the relief claimed. ( 12 ) THE result is that the writ petition lacks merit and it is hereby dismissed. Petition dismissed. . .