Jagan Nath and Ors. vs State of U.P.& Ors.

A. Mateen, J.—Heard learned counsel for the petitioners and learned Additional Public Prosecutor.

This petition under Section 482 Cr. P.C. has been preferred by petitioners being aggrieved against order dated 1992003 passed by the Chief Judicial Magistrate, Gonda by means of which non bailable warrants of arrest have been issued against the petitioners in Case No. 2491/03/01 under Sections 145, 148, 323, 504, 506, 452, 427, 448, 379 IPC and process under Sections 82/83 Cr. P.C. has also been issued against them fixing 22112003 in the case.

Learned counsel for the petitioners argued that complaint has been preferred by Radha Raman, opposite party No. 2 upon which the petitioners have been summoned. He stated that the Court concerned should have allowed the application under Section 205 Cr. P.C. moved by the petitioners for exemption of attendance.

Section 205 provides with respect to dispensation of personal attendance of the accused upon an application so moved by the accused persons, if the Magistrate sees reason to do so. Sub section (2) of Section 205 Cr. P.C. further provides that 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 provided. Thus, from a bare reading of Section 205 Cr. P.C. it clearly comes out that if application for exemption of attendance by accused persons is moved and the Magistrate sees reasons to do so, he may dispense with the personal attendance of the accused and direct him to appear through a pleader and subsection (2) of said Section further provides that at any stage of the proceedings, he may direct the personal attendance of the accused and also enforce the attendance in the manner provided in the Code of Criminal Procedure.

Learned counsel for the petitioners placed reliance on the case of Vishwa Nath Jiloka v. Ist Munsif, Lower Criminal Court, Bahraich, reported in 1990(1) JIC 721 (All) : 1990 Lko Cr R 136. The facts of the said decision are quite different and are not applicable to the facts of the present case. While considering the facts and circumstances of the in hand and also from the order dated 1992003 it clearly comes out that the application moved by the accused persons was rejected and they were directed to appear by the order of the learned Magistrate dated 872003. The order seems to be germane and in accordance with law. Even the impugned order contained in Annexure1 to the petition dated 1992003 is in consonance with the provisions of the Code of Criminal Procedure. Even the impugned order contained in Annexure1 to the petition dated 1992003 is in consonance with the provisions of the Code of Criminal Procedure.

Learned counsel for the petitioners then argued that the petitioners have been appearing on the past dates before the Court concerned, as such, there was no occasion for the learned Magistrate having been satisfied that on due application of mind and after arriving at the satisfaction that the petitioners are concealing themselves or intending to abscond.

I find force in said argument of learned counsel for the petitioners if that be so, that there is no other order prior to 1992003 with respect to proceedings under Sections 82/83 Cr. P.C., I direct that issuance of nonbailable warrants and process under Sections 82/83 Cr. P.C. shall remain in abeyance provided the petitioners appear before the Court concerned on 22112003, i.e. the date fixed in the case. The Court concerned is further directed to proceed further in accordance with law. If the petitioners do not appear on 22112003, benefit of this order will not be available to them.

It has also been stressed by learned counsel for the petitioners that since the accused persons are aged persons, as such, it will be too harsh for the Court concerned to press for their attendance. This submission of learned counsel for the petitioner seems to be reasonable and, as such, a direction is issued to the Court concerned to take into consideration the age of such accused persons while considering the application under Section 205 Cr. P.C.

With the above directions/observations, the petition is finally disposed of.