Hamerkunwarbai vs State

Nevaskar, J.—Accused Hamerkunwarbai was prosecuted along with accused Bahadursingh for an offence under Sec. 33 of the Madak Dravya Vidhan. The case was being tried as a summons case. An application was submitted on behalf of Hamerkunwarbai for being allowed to appear by her pleader.

This application was not entertained by the learned Magistrate on the ground that the plea of the accused was to be recorded. He held that the application for her being allowed to appear by a pleader would be considered after recording her plea.

A petition for revision of this order was filed in the Court of the Additional Sessions Judge Mandsaur who relying upon the decision Champa Devi Vs. Babulal Goenka, held that it was competent for the learned Magistrate to record the plea of the accused by putting questions to her counsel and that it was not necessary for that purpose to enforce her attendance. He has therefore made this reference recommending that net presence at this stage should not be enforced particularly for the purpose of recording her plea.

There is no doubt that the case was being tried as a summons-case and the first step which the Magistrate has to take after the accused appears or is brought before the Court, is the one provided under Sec. 242.

Sec. 205 of the Criminal Procedure Code empowers a Magistrate issuing a summons to an accused person to dispense with his attendance for proper reasons and to permit him to appear by his pleader.

The procedure provided under Sec. 242, Cr. P.C. requiring the Magistrate to put to the accused who appears or is brought before him the particulars of the offence of which he is accused asking him to show cause why he should not be convicted, is intended to take the place of framing a formal charge. It is only if the accused admits to have committed the offence and shows no sufficient cause why he should not be convicted that the Magistrate is entitled to convict him as provided under Sec. 243, Cr. P.C. If the accused does not wish to admit the commission of the offence and wants to plead not guilty then be is to be tried in accordance with the procedure prescribed under Sec. 244 of the Criminal Procedure Code. Therefore at this stage all that the accused is to do is either to plead guilty or not guilty. There is no reason why this cannot be done by the accused through her pleader. When the Magistrate permits the accused to appear through her pleader under Sec. 205, Cr. P.C., it must be taken that such appearance by her pleader involves performance of all acts that devolve upon the accused in the course of the trial for the purpose of protecting the interest of the accused. Therefore it is open for a pleader to make the necessary answers and either plead guilty or claim to be tried, under Sec. 242 and 243, C.P.C. This view is taken in Emperor vs. (sic) Bomanji Dubash ILR 50 Bom 250, Champa Devi vs. Babulal Goenka and in re Sukhalata Gupta 21 C.W.N. clxviii. The Magistrate probably thought that this could not be done and he therefore deferred the consideration of the application till the plea of the applicant is recorded.

As discussed above it is not necessary to do so and the pleader appearing for her could make a statement on her behalf after receiving necessary instructions.

The Magistrate is therefore directed to consider her application on merits and if he sees to serious reason to refuse her the exemption from personal appearance prayed for by her allow her application.

The reference is accordingly accepted.