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2008 DIGILAW 489 (GAU)

Roitong Singpho v. Sajjan Kumar Agarwal

2008-07-02

BROJENDRA PRASAD KATAKEY, J.CHELAMESWAR

body2008
JUDGMENT B.P. Katakey, J. 1. A proceeding being Complaint Case No. 174/2003 was initiated by Sri Sajjan Kr. Agarwal (Goel), under Sections 138 / 142 of the Negotiable Instruments Act, 1881, as amended, ('the Act') against M/s. R.S. Trading Company, Mr. Pisi Jawlai Singpho and Mrs. Roitong Singpho, in the court of the learned CJM at Tinsukia alleging that the accused persons in discharge of their liabilities issued and handed over an account payee cheque dated 7.4.2003 for Rs. 20,00,000 drawn on the State Bank of India, Tinsukia Branch, Tinsukia, but when such cheque was presented with the United Bank of India, Tinsukia Branch it was returned unpaid on the ground of in sufficient fund - "not arranged for." The learned Magistrate after recording the initial deposition of the complainant vide order dated 1.7.2003 took cognizance of the offence under Section 138 of the Act and issued process. The accused persons instead of appearing before the learned Magistrate pursuant to the summons issued, approached this Court in Criminal Revision Petition No. 427/2003 for quashing of the said proceeding in the complaint case. Though a Single Bench of this Court initially passed an interim order staying further proceeding of the complaint case, the said revision petition was eventually dismissed vide judgment and order dated 20.1.2006. After dismissal of the revision petition filed by the accused persons, fresh summons were issued by the learned Magistrate. 2. Mrs. Roitong Singpho, the accused No. 3 in the complaint case, thereafter, through the learned Counsel, filed an application on 12.8.2006 before the learned Magistrate praying for dispensing with her personal appearance before the court and to allow her to be represented by the learned Counsel, under Section 205 of the Code of Criminal Procedure, on the ground that she is a resident of Changlang in Arunachal Pradesh and suffering from various illness and has been advised complete bed rest by the attending doctor for which it is very difficult and inconvenient on her part to attend the court at Tinsukia after undertaking a long journey on each and every date. The said application was rejected by the learned CJM vide order dated 2.8.2006 on the ground that if the said accused person is allowed to be represented by a learned Counsel, without appearing before the court, the progress of the trial would be hampered. The said application was rejected by the learned CJM vide order dated 2.8.2006 on the ground that if the said accused person is allowed to be represented by a learned Counsel, without appearing before the court, the progress of the trial would be hampered. The learned Magistrate having held so directed issuance of bailable warrant of arrest fixing 19.8.2006 for appearance. The said accused person, thereafter, approached this Court in Criminal Revision Petition No. 310/2006 challenging the order dated 2.8.2006 passed by the learned CJM and for dispensing with her personal attendance before the learned Magistrate and to allow her to be represented by the counsel during pendency of the trial in Complaint Case No. 174/2003. A Single Bench of this Court vide order dated 17.8.2006, upon hearing the learned Counsel for the parties, passed the order allowing the Petitioner to be represented by her duly engaged counsel during the proceeding before the learned Magistrate with a further direction to the Petitioner to appear before the court as and when so directed and also to regularly appear in person before the learned court below immediately after she recovers from the ailment or as may be directed by the learned Magistrate. The said order was passed having regard to the ailment of the Petitioner. The bailable warrant of arrest issued against the Petitioner was also directed to be recalled by the said order. 3. Meanwhile, the accused person lodged an FIR in Miao Police Station, Arunachal Pradesh, against the complainant in Complaint Case No. 174/2003, which was registered as Miao P.S. Case No. 28/2006 under Sections 406 / 467 / 468 / 471 read with Section 34 IPC, which came to be, challenged by the said complainant in the said complaint case by filling an application under Section482, Code of Criminal Procedure before this Court in Criminal Petition No. 223/2006 for quashing of the FIR lodged in the Miao Police Station. A single bench of this Court vide order dated 19.3.2007, upon hearing the learned Counsel for the parties, having held that the parallel criminal investigation of the police case, in view of the pendency of the Complaint Case No. 174/2003, cannot be allowed to be conducted, has stayed the investigation in Miao Police Station case till the decision in the Complaint Case No. 174/2003. Mrs. Mrs. Roitong Singpho, one of the accused in the complaint case and informant in the Miao Police Station, case, approached the Apex Court seeking leave to appeal against the said order, being SLP (Crl.) No. 3937/2007 but the same was dismissed, vide order dated 3.8.2007 by directing disposal of the complaint case as expeditiously as possible preferably within a period of 4 (four) months-from, the date of receipt of the order. 4. Mrs. Roitong Singpho, one of the accused in the complaint case, filed an application on 5.9.2006 before the learned CJM, Tinsukia producing the certified copy of the order dated 17.8.2006 passed in Criminal Revision, Petition No. 310/2006, requesting the court to recall the bailable warrant of arrest issued against her. The learned CJM having perused the order dated 17.8.2006 passed by this Court in the criminal revision petition-rejected the advocate's representation sought for, as no medical certificate was filed along with such application. The learned Magistrate, however, recalled the bailable warrant of arrest issued earlier, pursuant to the direction issued by a Single Bench of this Court by the said order dated 17.8.2006, fixing 5.10.2006 for appearance of the accused. The accused No. 3 in the complaint case, Mrs. Roitong Singpho, on 5.10.2006 did not, appear and instead filed an application for passing necessary orders stating, inter alia that as she has not recovered from illness she may be allowed to be represented by the learned Counsel. The said application was also rejected by the learned Magistrate vide order dated 5.10.2006 by disbelieving her illness and directed issuance of bailable warrant of arrest fixing 13.10.2006 for appearance. The said order was challenged in Criminal Revision No. 50(4)/2006 before the learned Sessions Judge at Tinsukia, who vide order dated 6.1.2007 set aside the said order and remanded the matter to the learned Magistrate for reconsideration of the prayer of the accused person under Section 205, Code of Criminal Procedure. Accordingly, such prayer was re-considered by the learned Magistrate and vide order dated 25.8.2007 rejected such prayer as the medical certificate filed by the accused person in support of her illness is illegible and there is no proof of her suffering from any illness and also as she has violated the order of this Court dated 17.8.2006 passed in Criminal Revision Petition No. 310/2006. The learned Magistrate by the said order while issuing bailable warrant of arrest fixed 11.10.2006 for appearance. The said order was again challenged in Criminal Revision No. 2/2007 before the learned Sessions Judge at Tinsukia, which came to be decided by the learned First Additional Sessions Judge, Tinsukia vide judgment and. order dated 3.9.2007 allowing the revision petition by setting aside the order passed by the learned Magistrate on 28.5.2007 and directing to recall the warrant of arrest and to proceed with the criminal case, by holding that the approach of the learned Magistrate is "found to be not in conformity with the propriety and judicial discipline", when the accused person has already been allowed to be represented by the learned Counsel, by the High Court. 5. The learned Magistrate in view of the aforesaid facts and circumstances, vide order dated 21.9.2007 made the reference under Section 395, Code of Criminal Procedure to this Court for determination of the following questions: (i) Whether the court can proceed with a N.I. Act case of very huge amount against an accused person if he refuse or does not appear before the court to execute a bail bond under Section 441, Code of Criminal Procedure binding himself that he shall attend at the time and place mentioned in the bond and shall continue so to attend until otherwise directed by the court or without taking an undertaking from the accused person to the satisfaction of the court. (ii) Whether the lower revisional court can materially alter the order passed by the hon'ble High Court by replacing/changing the conditions imposed on the accused person under Section 205, Code of Criminal Procedure for his representation before the court. (iii) Whether the endeavor made by the trying Magistrate to bring the reluctant accused person to face the trial as per provisions of law can be regarded as not in conformity with propriety and judicial discipline. 6. We have heard Mr. D.K. Misra, the learned senior Counsel for the accused and Mr. P. Bora, the learned Counsel appearing on behalf of the complainant in Complaint Case No. 174/2003. 7. Mr. Misra, the learned Sr. 6. We have heard Mr. D.K. Misra, the learned senior Counsel for the accused and Mr. P. Bora, the learned Counsel appearing on behalf of the complainant in Complaint Case No. 174/2003. 7. Mr. Misra, the learned Sr. counsel referring to the provision of Sub-sections (1) and (2) of Section395, Code of Criminal Procedure has submitted that though under Sub-section (1) any court has the jurisdiction to make a reference to the High Court for decision, if it is satisfied that a case pending before it involves a question as to the validity of the Act, Ordinance or Regulation or any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which the said court is subordinate or by the Supreme Court, by setting out its opinion and the reasons therefor, Sub-section (2) only confers the jurisdiction on the court of Session or Metropolitan Magistrate to refer for decision of the High Court any question of law arising in the hearing of any case pending before it or him, to which the provisions of Sub-section (1) do not apply. Referring to the different provisions contained in Chapter-II of the Code of Criminal Procedure relating to the constitution of Criminal Courts and Offices, it has been submitted by the learned Sr. Counsel that the CJM being not a Metropolitan Magistrate, the reference made to this Court is without jurisdiction. According to Mr. Misra, such power of making reference under Sub-section (2) of Section 395, Code of Criminal Procedure has not consciously been conferred by the Legislature on any Magistrate other than the Metropolitan Magistrate, apart from the Sessions Judge, with a view not to burden the High Court, without any corresponding advantage, with so many references, as is evident from the report of the Law Commission of India rejecting the suggestion of conferring such jurisdiction on all the courts and recommending replacement of "Presidency Magistrate" as found in Section 432(2) of the Old Code of Criminal Procedure by "Metropolitan Magistrate" in the new Code of Criminal Procedure Mr. Misra, in support of his contention has placed reliance on a decision of the Pepsu High Court in Birju Singh Dhidma Singh and Ors. Misra, in support of his contention has placed reliance on a decision of the Pepsu High Court in Birju Singh Dhidma Singh and Ors. v. The State AIR 1953 Pep 49. 8. On the question of the requirement for dispensing with the personal appearance of an accused and permitting him/her to appear by the pleader, which gives rise to the present reference, Mr. Misra, the learned senior Counsel has submitted that the Magistrate can exercise such power and dispense with the personal appearance of the accused and permit him/her to appear by the pleader even before such accused person personally appears before the court on service of summons issued and it is not that for exercising such jurisdiction under Section 205 of the Code of Criminal Procedure, the accused must at least once appear before the learned Magistrate. Referring to the facts of the Complaint Case No. 174/2003, it has been submitted by the learned senior Counsel that admittedly the accused person is a lady and a resident of another State, namely State of Arunachal Pradesh, and she has to come all the way from Arunachal Pradesh by traveling 600 kms. to attend the court at Tinsukia and, therefore, there is no reason as to why her personal appearance has to be insisted upon and she should not be permitted to appear by her counsel, more so when the High Court in Criminal Revision No. 310/2006 allowed her to be represented by her counsel vide order dated 17.8.2006. It has further been submitted that the accused person could not appear before the learned Court below because of her illness, apart from the difficulties in appearing as stated above and inspite of the same, the learned Magistrate vide order dated 5.10.2006 insisted for personal appearance and issued bailable warrant of arrest, which order was rightly interfered with by the learned District and Sessions Judge in the Criminal Revision vide order dated 6.1.2007. Mr. Misra, further submits that in view of the aforesaid direction issued by this Court as well as by the court of Sessions, the learned Magistrate ought not to have rejected the prayer made under Section 205, Code of Criminal Procedure as has been done vide order dated 25.8.2007 and as such, the same was rightly interfered with by the learned Additional District and Sessions Judge in the revision petition filed by the accused, vide order dated 3.9.2007. 9. 9. Relating to the first question of law referred by the learned Magistrate, it has been submitted by Mr. Misra that provision of Section 441, Code of Criminal Procedure is applicable only when any person is arrested and is released on bail or released on his own bond and as in the case in hand, the accused person was not arrested, there is no question of execution of any bond or furnishing any sureties within the meaning of Section 441 of the Code of Criminal Procedure Mr. Misra, further submits that the proceeding under Section 138 of the Act being not a warrant case, the court is to issue summons for appearance of the accused person unless, of course, the conditions stipulated in Clauses (a) and (b) of Section 87 of the Code of Criminal Procedure exist and the Magistrate after recording its reason in writing issues a warrant of arrest being satisfied with the fulfillment of the requirements of Clauses (a) and (b) of Section 87 of the Code of Criminal Procedure In the instant case, according to Mr. Misra, it appears from the various orders passed by the learned Magistrate that neither of the conditions stipulated in Clauses (a) and (b) of Section 87 has been satisfied for issuance of a warrant by the learned Magistrate in a summons case and, therefore, according to Mr. Misra, there is no requirement of answering the question No. 1 as referred to by the learned CJM in the present case, keeping in view the facts and circumstances involved. 10. Regarding the second question of law as referred by the learned CJM, it has been submitted by Mr. Misra that there cannot be any dispute that any court subordinate to the High Court cannot alter the order passed by the High Court and, therefore, the subordinate Courts cannot replace/change the conditions imposed by the High Court, on the accused person, while dealing with an application under Section 205 of the Code of Criminal Procedure. 11. Mr. Misra that there cannot be any dispute that any court subordinate to the High Court cannot alter the order passed by the High Court and, therefore, the subordinate Courts cannot replace/change the conditions imposed by the High Court, on the accused person, while dealing with an application under Section 205 of the Code of Criminal Procedure. 11. Mr. Misra, relating to the third question of law as referred by the learned CJM, has submitted that keeping in view the facts and circumstances of this case as well as the various orders passed by this Court and also by the learned Sessions Court, it is evident that the learned CJM by refusing to dispense with the personal appearance of the accused person and in not permitting her to appear by her advocate, acted contrary to the Judicial discipline and propriety, as the High Court vide order dated 17.8.2006 exempted the personal appearance of the accused person and allowed her to be represented by her counsel. Mr. Misra further submits that as the trial in the Complaint Case No. 174/2003 is presently proceeding without there being any insistence for the personal appearance of the accused person, pursuant to the order dated 29.4.2008 passed by this Court, the reference made by the learned Magistrate, in the present case need not be answered. 12. Mr. Misra, in support of his contention, regarding the requirement of dispensing with the personal appearance of the accused person and permitting her to appear by her advocate, has placed reliance on a Single Bench decision of this Court in Mt. Marjina Begum and Ors. v. Matakhal Ali 1978 Cri. LJ 292; in Suhas Palekar v. Badshah, Hotel & Resorts, 2004 Cri. L.J. 536; of the Karnataka High Court in Shakuntala v. Virupanna S. 2001 Cri. LJ 1129 as well as of the Apex Court in V.K. Jain v. Union of India and Ors., (2000) 1 SCC 709 ; Bhaskar Industries Ltd. v. Bhiwani Denim & Apparels Ltd. and Ors., (2001) 7 SCC 401 ; S.V. Muzumdar and Ors. v. Gujarat State Fertilizer Co. Ltd. and Ors., (2005) 4 SCC 173 and in Gajanand Goyal and Ors. v. Asiya Begum(2005) 12 SCC 331. 13. Mr. v. Gujarat State Fertilizer Co. Ltd. and Ors., (2005) 4 SCC 173 and in Gajanand Goyal and Ors. v. Asiya Begum(2005) 12 SCC 331. 13. Mr. Bora, the learned Counsel for the complainant, per contra, has submitted that there being no difference of the power and jurisdiction of the Metropolitan Magistrate with other Magistrate including the CJM under the Code of Criminal Procedure, it cannot be said that only the Metropolitan Magistrate has the jurisdiction to make a reference under Sub-section (2) of Section 395 of the Code of Criminal Procedure to the exclusion of the other Magistrates. According to Mr. Bora, such an interpretation as bought to be given by the learned senior Counsel for the accused is contrary to the provisions of the Code of Criminal Procedure. Mr. Bora further submits that it is apparent from the High Court's order dated 17.8.2006 that the same was an agreed order and the personal appearance of the accused person was dispensed with for the time being keeping in view her illness and this Court by the said order directed the accused person to appear before the court as and when so directed and to present herself regularly in person immediately after she recovers from the ailment or as may be directed by the learned Magistrate, and, therefore, the burden lies on the accused person to prove to the satisfaction of the learned Magistrate that she has not recovered from ailment, by producing relevant medical evidence, which burden she could not discharge and, therefore, the learned Magistrate has rightly passed the orders dated 5.10.2006 as well as 28.5.2007 rejecting the prayer of the accused person for dispensing with her personal appearance and to be represented by a counsel. According to Mr. Bora, the orders passed by the learned Magistrate do not suffer from any judicial indiscipline or propriety as observed by the learned Additional District and Sessions Judge in the order dated 3.9.2007 passed in Criminal Revision No. 14(2)/2007. According to Mr. Bora, the orders passed by the learned Magistrate do not suffer from any judicial indiscipline or propriety as observed by the learned Additional District and Sessions Judge in the order dated 3.9.2007 passed in Criminal Revision No. 14(2)/2007. The conditions, according to the learned Counsel, for dispensing with the personal appearance of the accused and permitting her to be represented by her counsel, have not been fulfilled in the case in hand by the accused person as she in her applications filed before the learned Magistrate under Section 205 of the Code of Criminal Procedure never undertakes that she would not dispute her identity as the accused in the case and that her counsel would be present in court and she would have no objection in taking evidence in her absence. It has farther been submitted that the only ground taken in the application filed under Section205, Code of Criminal Procedure was that she is from another State and has to travel a long distance to attend the court at Tinsukia in the State of Assam and is suffering from illness. The accused person, according to the learned Counsel, could not even produce any acceptable medical evidence relating to her illness and the ground of resident of another State as well as the requirement of traveling a long distance cannot be the grounds for passing an order under Section 205 of the Code of Criminal Procedure in favour of the accused person and hence, was rightly rejected by the learned Magistrate. Mr. Bora, therefore, submits that the question of law as referred to by the learned CJM vide order dated 21.9.2007, therefore, requires to be answered accordingly. Mr. Bora in support of his contention has placed reliance on the decision of the Apex Court in Lili Begum v. Joy Chandra Nagbanshi, (1994)2 SCC 39 as well as in Bhaskar Industries Ltd. (supra). 14. We have considered the submissions of the learned Counsel for the parties and also perused the materials available on record. 15. Mr. Bora in support of his contention has placed reliance on the decision of the Apex Court in Lili Begum v. Joy Chandra Nagbanshi, (1994)2 SCC 39 as well as in Bhaskar Industries Ltd. (supra). 14. We have considered the submissions of the learned Counsel for the parties and also perused the materials available on record. 15. Complaint Case No. 174/2003, as noticed above, has been filed by the complainant against the accused person under Section 138 / 142 of the Act and though the Criminal Revision Petition No. 427/2003 was filed before this Court under Section 482 of the Code of Criminal Procedure, for quashing the proceeding in the said complaint case, the said revision petition was dismissed vide order dated 20.1.2006. The said order was also unsuccessfully challenged by the accused before the Apex Court. The accused person thereafter, filed an application on 2.8.2006 before the learned Magistrate under Section 205, Code of Criminal Procedure praying for dispensing with her personal attendance and for permitting her to appear by her pleader on the ground of her illness, enclosing therewith a copy of the medical certificate as well as on the ground of inconvenience to attend the Court at Tinsukia stating that she has to travel a long distance on each and every date from Itanagar in the State of Arunachal Pradesh. By the said application the accused also undertook not to dispute and challenged her identity during the trial before the learned Magistrate and also expressed her no objection in taking evidence in her absence and further stating that she shall not claim any prejudice in that case. The said application was rejected vide order dated 2.8.2006 by the learned CJM disbelieving the medical certificate issued by the Doctor and also on the ground that it requires to be ascertained the actual person facing trial of offence and any order passed under Section 205, Code of Criminal Procedure allowing the advocate's representation, will hamper the progress of the trial. A Single Bench of this Court on 17.8.2006 in Criminal Revision No. 310/2006, filed by the accused person challenging the order dated 2.8.2006 passed by the learned Magistrate, has passed the following order: Heard Mr. K. Agarwal, learned Counsel for the Petitioner and Mr. P. Bora, learned Counsel for the Respondent/opposite party. A Single Bench of this Court on 17.8.2006 in Criminal Revision No. 310/2006, filed by the accused person challenging the order dated 2.8.2006 passed by the learned Magistrate, has passed the following order: Heard Mr. K. Agarwal, learned Counsel for the Petitioner and Mr. P. Bora, learned Counsel for the Respondent/opposite party. As agreed to by the learned Counsel for the parties, this revision petition is proposed to disposed of at this stage. By the impugned order dated 2.8.2006, the learned Magistrate rejected the petition filed by the Petitioner praying for representation by an advocate under Section 205, Code of Criminal Procedure in Complaint Case No. 174C/2003. Having regard to the ailment of the Petitioner, in reversal of the impugned order dated 2.8.2006 passed by the learned Magistrate, it is ordered that the Petitioner shall be allowed to be represented by her duly engaged counsel during the proceedings before the learned Magistrate. The Petitioner shall appear before the court as and when so directed and shall present herself regularly in person immediate after she recovers from the ailment or as may be directed by the learned Magistrate. The bailable warrant of arrest issued against the Petitioner shall be recalled. By the said order the bailable warrant of arrest issued against the accused person was directed to be recalled. 16. It is apparent from the said order dated 17.8.2006 passed by a Single Bench of this Court that the same was an agreed order as well as an interim and conditional order, as this Court has directed the accused person to present herself regularly in person immediately after she recovers from illness and to appear before the court as and when so directed by the learned Magistrate. 17. The accused person armed with the said order dated 17.8.2006, passed in the aforesaid criminal revision petition, filed an application on 5.9.2006 through her counsel annexing therewith the certified copy of the said order, praying for passing necessary order recalling the bailable warrant of arrest issued stating that the High Court has allowed the accused person to be represented by her duly engaged counsel. In the said application the accused person, however, did not state anything about her illness. In the said application the accused person, however, did not state anything about her illness. The learned CJM vide order dated 5.9.2006 has in view of the High Court's order dated 17.8.2006 and in the absence of production of any proof about the continued illness of the accused person, rightly passed the order dated 5.9.2006 fixing 5.10,2006 for appearance of the accused person, by recalling the bailable warrant of arrest issued earlier. Such order passed by the learned Magistrate cannot be termed as contrary to the High Court's order dated 17.8.2006, as the said order passed in the aforesaid Criminal Revision Petition was conditional, as noticed above, as it contains a direction to the accused person to appear in person regularly before the learned court below, as soon as she recovers from illness, which imposes a burden on the accused person to satisfy the learned court below that she has not recovered from illness and hence, her personal appearance is to be dispensed with, which burden she has failed to discharge. 18. The accused person on 5.10.2006 instead of appearing before the learned Magistrate filed another application through her counsel, this time stating that she has not recovered from illness and is under continuous treatment enclosing therewith the copy of the prescription and the medical certificate issued and further stating that she will appear before the court as soon as she recovers from her illness. The said application was also rejected by the learned Magistrate vide order dated 5.10.2006, as the accused person has failed to prove her illness and she did not even appear before the learned trial court since 2003. By the said order the bailable warrant of arrest was again issued fixing 13.10.2006, The said order was interfered with by the learned Sessions Judge, Tinsukia in Criminal Revision No. 50(4)/2006 by directing the fresh disposal of the prayer made under Section205 of the Code of Criminal Procedure in accordance with law. Upon fresh consideration, the prayer made by the accused person under Section 205, Code of Criminal Procedure was again rejected by the learned Magistrate vide order dated 28.5.2007, as the medical certificate filed by the accused person was illegible and the photostat copies of the prescriptions issued by the attending doctors do not disclose the nature of illness of the accused person. The learned CJM in the said order has also observed that the accused person has violated the High Court's order dated 17.8.2006 passed in Criminal Revision Petition No. 310/2006 by not appearing before the court in spite of the repeated orders passed, as the accused person before the High Court has agreed to appear as and when directed by the learned Magistrate. The learned CJM, therefore, issued the bailable warrant of arrest again fixing 11.6.2007. The said order was also challenged by the accused person in Criminal Revision No. 14(2)/2007 before the learned District and Sessions Judge at Tinsukia, which was decided by the learned First Additional Sessions Judge, Tinsukia vide judgment and order dated 3.9.2007. The learned Additional Sessions Judge by the said judgment set aside the order dated 28.5.2007 passed by the learned CJM and directed to recall the bailable warrant of arrest issued and to proceed with the Complaint Case No. 174/2003. 19. The learned Additional Sessions Judge (No. 1), Tinsukia by the judgment and order dated 3.9.2007 passed in Criminal Revision Petition No. 14(2)/2007 has found the approach of the learned CJM to be not in conformity with the propriety and judicial discipline in refusing to dispense with the personal appearance of the accused person and in not permitting her to be represented by her counsel, as according to the learned Additional Sessions Judge, the accused person has already been allowed to be represented by her counsel by the High Court vide order dated 17.8.2006 passed in Criminal Revision Petition No. 310/2006. Such observation of the learned Additional Sessions Judge was uncalled for and contrary to the aforesaid order dated 17.8.2006 passed by a Single Bench of this Court, as it is evident from the said order, as discussed above, that it was an interim and conditional order. The learned Additional District and Sessions Judge, therefore, ought not to have made such observations against the learned CJM, keeping in view the order dated 17.8.2006 passed in the aforesaid criminal revision petition as well as the conduct of the accused person. Such observation of the learned Additional Sessions Judge is therefore, expunged from the record. 20. The learned Additional District and Sessions Judge, therefore, ought not to have made such observations against the learned CJM, keeping in view the order dated 17.8.2006 passed in the aforesaid criminal revision petition as well as the conduct of the accused person. Such observation of the learned Additional Sessions Judge is therefore, expunged from the record. 20. The learned Additional Sessions Judge (No. 1), Tinsukia in the aforesaid judgment and order dated 3.9.2007 has also observed that the order of the High Court dated 17.8.2006 passed in the aforesaid criminal revision petition "cannot be read to mean that the learned Magistrate is at liberty to demand the personal appearance of the Petitioner-accused without there being any grounds for such personal appearance". The learned Judge has misread the order dated 17.8.2006 passed by this Court in the aforesaid Criminal Revision Petition and made such observation. As discussed above, the said order dated 17.8.2006 passed by this Court was conditional and interim and the burden lies on the accused person to prove to the satisfaction of the learned Magistrate that she has not recovered from illness so as not to appear before the learned court below on the ground of her illness, which, as noticed above, she has failed to do before the learned Magistrate. The learned Additional Sessions Judge in the said judgment dated 3.9.2007 has also observed that before passing the impugned order by the learned Magistrate on 28.5.2007 rejecting the prayer made under Section 205, Code of Criminal Procedure, the accused person ought to have been given a chance to produce proper medical certificate and prescriptions, if at all necessary. But the learned Additional District Judge by observing so set aside the impugned order without asking the learned CJM to reconsider the same. 21. The law relating to dispensation of personal appearance of an accused person and permitting him/her to appear by his/her pleader is more or less by now settled. Such order under Section 205, Code of Criminal Procedure can be passed even before the appearance of the accused person before the court pursuant to the summons issued by a learned Magistrate. 21. The law relating to dispensation of personal appearance of an accused person and permitting him/her to appear by his/her pleader is more or less by now settled. Such order under Section 205, Code of Criminal Procedure can be passed even before the appearance of the accused person before the court pursuant to the summons issued by a learned Magistrate. Sub-section (2) of Section 205confers the learned Magistrate, who is enquiring into or trying the case, discretionary power to direct the personal attendance of the accused person, at any stage of the proceeding, and, if necessary, to enforce such attendance in the manner prescribed by the Code. Such discretion no doubt has to be exercised judiciously. 22. Whether an application under Section 205, Code of Criminal Procedure praying for dispensation of the personal appearance and representation by the counsel is to be allowed or not depends on facts of each of the case. The court, however, while dealing with such a prayer made under Section 205, Code of Criminal Procedure has to consider as to whether any useful purpose would be served by requiring the personal attendance of the accused or whether progress of the trial is likely to be hampered on account of absence of the accused person and also must keep in mind the gravity of the offence alleged. The court while dealing with the application under Section 205, Code of Criminal Procedure, filed in a summons case, has also to consider as to whether the personal appearance may result in any enormous hardship to an accused and pass such order after taking an undertaking from such accused person that he/she would not dispute his/her identity as the particular accused in the case, that a counsel on his/her behalf would be present in court and he/she would have no objection in taking evidence in his/her absence. The main concern of the court is administration of criminal justice and for that purpose the court proceeding should register the progress. However, the Magistrate, who grants such benefit under Section 205 to an accused person must take precautions, as stated above. If the progress of the trial can be achieved even in the absence of the accused, the court can certainly take into account the magnitude of the sufferings, which a particular accused person may have to bear with, in order to make himself/herself present in the court in that case. If the progress of the trial can be achieved even in the absence of the accused, the court can certainly take into account the magnitude of the sufferings, which a particular accused person may have to bear with, in order to make himself/herself present in the court in that case. Such discretion, however, needs to be exercised only in rare instances, where; due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the Magistrate feels, that the accused person would suffer greatly if such prayer is not allowed. Such exercise of power has to be only in the interests of justice. The benefit under Section205, Code of Criminal Procedure can be given to the accused person even at a first appearance through counsel. Bhaskar Industries Ltd. (supra) and S.V. Muzumdar (supra). 23. In view of the aforesaid legal position relating to the power of the learned Magistrate under Section 205 of the Code of Criminal Procedure, the decision of the Apex Court cited by the learned Counsel for the parties in Lili Begum (supra), Gajanand Goyal (supra) and in V.K. Jain (supra) are not discussed in details, so also of this Court in Mt. Marjina Begum (supra) and Suhas Pale liar (supra) and also of the Karnataka High Court in Shakuntala (supra). 24. In view of the facts narrated above, as the High Court has the power to interfere with any proceeding pending before any Court subordinate to it, in exercise of the revisional power and such revisional power can be exercised suo motu and are not limited to cases in which the record is sent for by the court, we do not consider it necessary to decide the question as to whether any Magistrate other than the Metropolitan Magistrate has the jurisdiction to make a reference under Section 395(2) of the Code of Criminal Procedure, apart from the court of Sessions and left the said question to be decided in an appropriate case. Hence, the decision cited by the learned Counsel for the accused and the arguments put forwarded by the learned Counsel for the parties in that regard have not been dealt with in this judgment. 25. Hence, the decision cited by the learned Counsel for the accused and the arguments put forwarded by the learned Counsel for the parties in that regard have not been dealt with in this judgment. 25. Section 441(1) of the Code of Criminal Procedure requires that before any person is released on bail or released on his own bond, he shall have to execute a bond for such sum of money as the police officer or court, as the case may be, thinks sufficient with one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or court, as the case may be. Sub-section (2) provides that where any condition is imposed for the release of any person on bail, the bond shall also contain that condition. Sub-section (3) provides that if the case so required, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Sessions or other court to answer the charge. For better appreciation Section 441, Code of Criminal Procedure in its entirety is reproduced below: 441. Bond of accused and sureties. - (1) Before any person is released on bail or released on his own bond, a bond for such sum of money as the police officer or court, as the case may be, thinks sufficient shall be executed by such person, and, when he is released on bail, by one or more sufficient sureties conditioned that such person shall attend at the time and place mentioned in the bond, and shall continue so to attend until otherwise directed by the police officer or court, as the case may be. (2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition. (3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Sessions or other court to answer the charge. (2) Where any condition is imposed for the release of any person on bail, the bond shall also contain that condition. (3) If the case so requires, the bond shall also bind the person released on bail to appear when called upon at the High Court, Court of Sessions or other court to answer the charge. (4) For the purpose of determining whether the sureties are fit or sufficient, the court may accept affidavits in proof of the facts contained therein relating to the sufficiency or fitness of the sureties, or, if it considers necessary, may either hold an inquiry itself or cause and inquiry to be made by a Magistrate subordinate to the court, as to such sufficiency or fitness. 26. Section 2(w) of the Code of Criminal Procedure defines "summons case" as a case relating to an offence and not being a warrant case. Clause (x) of Section 2 defines "warrant case" as a case relating to offence punishable with death or imprisonment for life or imprisonment for a term exceeding two years. Section 138 of the Act prescribed the maximum punishment with imprisonment for a term, which may be extended to two years or with fine, which may extend to twice the amount of the cheque or with both. Therefore, the proceeding under Section 138 of the said Act is a summons case within the meaning of the Code of Criminal Procedure Section 87 of the Code of Criminal Procedure lays down the circumstances under which a court may, in case in which it is empowered by the Code to issue a summons for the appearance of any person, issue warrant of arrest of the accused person, after recording its reasons in writing, namely- (a) if, either before the issue of such summons, or after the issue of the same but before the time fixed for his appearance, the court sees reason to believe that he has absconded or will not obey the summons; or (b) if at such time he fails to appear and the summons is proved to have been duly served in time to admit of his appearing in accordance therewith and no reasonable excuse is offered for such failure. 27. 27. Therefore, there is no question of compliance of Section 441, Code of Criminal Procedure in a case where the summons were issued and not the warrant by invoking the jurisdiction under Section87 of the Code of Criminal Procedure. The requirement of compliance of Section 441 of the Code of Criminal Procedure appears only when the accused person is arrested and before such person is released on bail or released on his own bond by the police officer or by court. Whenever the court allows the benefit to an accused person, in a summons case, under Section 205 of the Code of Criminal Procedure, without issuing any warrant of arrest for his production before the court, there is no requirement of compliance of Section 441 of the Code of Criminal Procedure. The question No. 1 as referred by the learned CJM vide order dated 21.9.2007 is accordingly answered. 28. The question No. 2 as referred by the learned Magistrate in the aforesaid order does not call for any discussion, as no court subordinate to High Court can materially alter any order passed by the High Court by replacing/changing the conditions imposed on the accused person under Section 205, Code of Criminal Procedure. However, keeping in view the aforesaid discussion of the facts of the case in hand as well as the law, we have already recorded the finding that the orders passed by the learned CJM on 5.10.2006 and 28.5.2007 are in conformity with the order dated 17.8.2006 passed by a Single Bench of this Court in Criminal Revision Petition No. 310/2006. 29. In view of the finding already recorded by us in this judgment that the orders passed by the learned CJM rejecting the prayer made under Section 205, Code of Criminal Procedure by the accused person cannot be termed as not in conformity with the propriety and judicial discipline, the question of law No. 3 as formulated by the learned CJM vide order dated 21.9.2007 is answered accordingly. 30. 30. Pursuant to the order dated 29.4.2008 passed in this reference proceeding directing the learned CJM to proceed with the trial in the Complaint Case No. 174/2003 with the further direction to permit the accused person to be represented by the learned Counsel, the trial in the said complaint case is going on in the absence of the accused person, who is represented by the learned Counsel, submitted by the learned Counsel for the parties. Hence, we are of the view that the cause of justice would be served if trial in the said complaint case is allowed to be continued as has been proceeded at present. It is, however, open to the learned Magistrate to require the accused person to be present in the court, if at any stage of the proceeding, it is necessary to enforce such attendance as stipulated in Sub-section (2) of Section 205 of the Code of Criminal Procedure. In case of such necessity, the learned court below shall pass necessary order, keeping in view the requirements of passing such order as well as the discussions made hereinabove. 31. The reference is accordingly answered.