Chockalingam vs Swastik Filaments Pvt. Limited

V. Kanagaraj, J.—Both the above Crl. O.Ps have been filed by the same petitioner. The first Crl.O.P. No. 1969 of 2003 has been filed by

the petitioner praying to call for the records relating to Crl.M.P. No. 5281 of 2002 in C.C. No. 4153 of 2002 on the file of XXIII Metropolitan

Magistrate, Saidapet, Chennai, and set aside the order dated 15.11.2002 made by the said Court. The second Crl.O.P. No. 1975 of 2003 has

been filed by the petitioner praying to call for the records in Crl.M.P. No. 5282 of 2002 in C.C. No. 3431 of 2002 on the file of the XXIII

Metropolitan Magistrate, Saidapet, Chennai and set aside the order dated 15.11.2002 made by the said Court.

The petitioner in both the C.C.Nos.4153 of 2002 and 3431 of 2002 has filed applications before the trial Court in Crl.M.P. No. 5281 of 2002

and Crl.M.P. No. 5282 u/s 205 Cr.P.C on certain grounds such as, that he is a business man dealing in fish-nets at Peravurani, Tanjavur District

besides being an agriculturist; that both the business require his personal attention at his native place Peravurani, and the petitioner''s absence even

for a day may result in loss and hardship in the business which would become irrepairable; that the petitioner has already lost his main crop and

now he is solely dependent on the short term crop; that his native place is deviated from Chennai by 400 kms and for showing his appearance in

both the above cases on each and every hearing, it is not that much easy and therefore would pray that his personal attendance may be dispensed

with and to appear before the Court by his plead.

The trial Court without having any discussion on the hardships raised on the part of the petitioner, simply stating that unless the petitioner

appears in person for each and every hearing, the case could be disposed of at the earliest and in case, he is not able to appear before the Court

for any reason, he could file applications u/s 317 Cr.P.C and on such grounds, would dismiss the applications filed in both cases as a result of

which the petitioner has come forward to file both the above Crl. O.Ps on certain grounds as pleaded in his grounds of the above Crl. O.P.

In the above circumstances, the only point for consideration is whether the order passed by the trial Court dated 15.11.2002 in

Crl.M.P.Nos.5281 of 2002 and 5282 of 2002 in the above Calendar Cases is just and proper and acceptable one or do they become liable to be

set aside as it is prayed for on the part of the petitioner?

Section 205 Cr.P.C is of two parts. Subsection(1) of Sec. 205 deals with the Magistrate dispensing with the personal attendance of the accused

and permitting him to appear by his pleader. Subsection(2) of Section 205 deals with the Magistrate enquiring into or trying the case may, at any

stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce his attendance in the manner provided by the

code.

This facility to permit the party to appear by his pleader and if necessary, the Magistrate could summon the accused is envisaged in Section 205

Cr.P.C, only to make use of the same whenever it is required and wherever necessary in the circumstances of the case. Needless to mention that

since the case in hand before the trial Court being those instituted u/s 138 of the Negotiable Instruments Act, by the other side, it cannot be said

that on all hearings, the personal attendance of the accused is a must and in fact, on such occasions wherein the attendance of the accused is

absolutely necessary, say at the time of questioning the accused or pronouncing the Judgment etc., the Magistrate is at liberty to summon the

accused as envisaged u/s 205(2) Cr.P.C and hence the Section is intended only for providing such facilities to the accused and therefore in these

circumstances of the case as brought forth on the part of the petitioner, the Magistrate should have permitted the petitioner to appear by his

counsel during all hearings, unless he is specifically summoned to show his personal attendance. However, the Magistrate shall lay emphasis that

when the case is called on every hearings, his counsel must attend to instead of the accused lest the Magistrate is at liberty to pass his own orders

on such absence of the counsel, since the same is laid emphasis by law.

In result,

(i) both the above Crl. O.Ps are allowed.

(ii)both the orders passed by the Magistrate in Crl. M.P. Nos. 5281 and 5282 of 2002, are hereby set aside.

(iii) The petitioner is permitted to appear by his pleader on such hearings unless his personal attendance is required by the trial Court.

(iv) Consequently, Crl. M.P. Nos.680 and 693 of 2003 are closed.