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2004 DIGILAW 953 (ALL)

SANDHYA GUPTA v. STATE OF U P

2004-04-30

AMAR SARAN

body2004
AMAR SARAN, J. By an order dated 19. 2. 2004 Honble Imtiyaz Murtaza, J. had directed that if the applicants and one another appeared before the Court of I ACJM, Rampur, through counsel, the Magistrate shall not insist on the personal appearance of the applicants, till the time of framing charges unless specifically required for any particular purpose. (Emphasis added ). 2. In spite of presentation of this order before the learned A. C. J. M. Rampur, the learned Magistrate passed the impugned order on 16. 4. 2004 almost overruling the order passed by this Court. He has observed that as N. B. Ws. were already existing against the applicants, unless the applicants appear in Court in person and furnish reasons why they were not attending the Court on particular dates, the N. B. Ws. against them would continue. This approach of the learned Magistrate does not commend itself to this Court. In such circumstances the learned Magistrate was required to make a sincere effort to implement the order of this Court in letter and spirit, rather than to find reasons for sabotaging it. It was incumbent on the Magistrate in such a situation to have withdrawn the non-bailable warrants and allowed the accused to appear through Counsel at least till the stage of framing of charges, in compliance with the order of this Honble Court. Instead it appears that the Magistrate has used the order for re-affirming his earlier order issuing non-bailable warrants. 3. This is not the intendment of the expression "particular purpose" mentioned in the order passed by Honble I. Murtaza, J. for which the order has been passed. By "particular purpose," his Lordship was not trying to endorse or rubber stamp an existing order of the Magistrate issuing non-bailable warrants. It referred to an eventuality, such as the need to summon an accused at a particular stage in the trial when his presence may be imperatively needed. Such stages could be the stage of framing charges or the stage under Section 313 Cr. P. C. or at some other relevant stage in the trial. 4. The Magistrate should realize that there is no particular charm in collecting accused to add to numbers to the already crowded docks of existing Criminal Courts, nor is the presence of an accused to be secured merely for the purpose of glorifying the Magistrate. P. C. or at some other relevant stage in the trial. 4. The Magistrate should realize that there is no particular charm in collecting accused to add to numbers to the already crowded docks of existing Criminal Courts, nor is the presence of an accused to be secured merely for the purpose of glorifying the Magistrate. Clearly the import of this order was that the applicants should be permitted to appear through counsel. In any case, there is no particular advantage gained in insisting on the presence of all the accused in a case under Section 498-A I. P. C. on each date. 5. Certain observations of the Patna High Court in para 5 of Ravi Singh v. State of Bihar, 1980 Cri. LJ. 330, which emphasize that there must be a liberal recourse to Section 205 Cr. P. C. deserve to be quoted in this connection: "i am constrained to observe that this was a negation of justice. It behoves me therefore to emphasize the liberality built in the Section enumerated above enabling the Magistrate to extend their benefits to the accused appearing before them and to avoid unnecessary harassment. I, therefore, hold that in all trivial and technical cases where the accused are ladies, old and sickly persons, workers in factories, daily wage earners, other labourers and busy business people or industrialists, Courts should invariably exercise discretion liberally to exempt such persons from personal attendance. " The same law report has further stated in paras 6 and 7: " (6) More or less the same view has been taken by the Allahabad High Court in Bhagwan Das v. State, AIR 1953 All 630 . I have referred to the aforesaid cases in some details as the decisions clearly bring out the scope and object of Section 205 of the Code. I have already pointed out that Section 206 of the Code itself clearly shows the trend of the law relating to the personal appearance of an accused in petty cases. Therefore, the learned Magistrate was clearly in error in holding that as no ground had been made out by the petitioners for exempting the personal appearance of the accused through their lawyers, the application filed by the petitioners could not be allowed. He should have directed his enquiry to find out as to whether there was any justification for refusing their prayer for exemption from personal appearance. He should have directed his enquiry to find out as to whether there was any justification for refusing their prayer for exemption from personal appearance. (7) The order regarding issuance of non-bailable warrant of arrest against the petitioner was much worse. The impugned order of the learned Magistrate itself shows that summons had been issued against the accused persons in this case on 3. 8. 1978. I have tried in vain to find out from the records of the learned Magistrate the date for which the summons had been issued against the accused persons. We do not know, therefore, as to whether the date for the appearance of the accused had already expired when the learned Magistrate had ordered issuance of non-bailable warrant against the accused. It will be recalled that the non- bailable warrant of arrest was ordered to be issued only 13 days after the issuance of summons against the accused. The order of the learned Magistrate was as whimsical as it was arbitrary and it sadly demonstrates the tendency to exhibit power. I have no doubt in my mind that the order regarding issuance of the non- bailable warrant of arrest against the petitioners was a gross abuse of the process of the Court. " 6. More recently the apex Court has considered the law concerning dispensing of attendance by accused in certain cases and permitting appearances through counsel in the case of M/s Bhaskar Industries Limited v. Bhiwani Denim and Apparels Ltd. , 2001 (2) JIC 685 (SC) : 2001 Cri. L. J. 4250. Paras 17 and 18 of the law report could be usefully reproduced here: "para-17. Thus, in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel. The Magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the Court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. Section 317 of the Code has to be viewed in the above perspective as it empowers the Court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the Court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the Court that he would not dispute his identity as the particular accused in the case and that a counsel in his behalf would be present in Court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses. (18) A question could legitimately be asked - what might happen if the counsel engaged by the accused (whose person appearance is dispensed with) for not appear or that the counsel does not co-operate in proceeding with the case? We may point out that the legislature has taken care for such eventualities. Section 205 (2) says that the Magistrate can in his discretion direct the personal attendance of the accused at any stage of the proceedings. The last limb of Section 317 (1) confers a discretion on the Magistrate to direct the personal attendance of the accused at any subsequent stage of the proceedings. He can even resort to other steps for enforcing such attendance. " 7. It is noteworthy that in the present case his Lordship Justice Murtaza had confined the relief of appearance through Counsel for the applicants only up to the stage of framing of charges. Also this was a case where proceedings under Section 498-A IPC had been initiated after an application under Section 156 (3) Cr. P. C. The relief of appearance through counsel had even been denied to the husband of the aggrieved woman, and he had only been given the relief of expeditious consideration of his bail application. 8. Accordingly I direct that the N. B. Ws. issued against the applicants be set aside and they may appear through counsel before the learned Magistrate in terms of the order passed by this Court on 19. 2. 2004. They are now granted one months time to appear through counsel before the learned Magistrate. 8. Accordingly I direct that the N. B. Ws. issued against the applicants be set aside and they may appear through counsel before the learned Magistrate in terms of the order passed by this Court on 19. 2. 2004. They are now granted one months time to appear through counsel before the learned Magistrate. With these observations, this revision is disposed of. Revision disposed of. .