Manrup Singh and Others vs Sahdeo Sahu

Wort, J.—This case was adjourned by me for the purpose of ascertaining from the learned Sessions Judge whether the accused was present before the Sub-Divisional Magistrate on the occasion of his dismissing a complaint u/s 203, Criminal Procedure Code. It appeared doubtful from the record which was before me whether the accused was in fact present or not and it also appeared that there was authority for the proposition that in certain circumstances before a Sessions Judge ordered a further enquiry, the accused should be present and have an opportunity of arguing the case before him. That right arises in two ways: First, u/s 436, Criminal Procedure Code but that only in cases in which the accused has been discharged u/s 209 of the Code, and, secondly, the right (if such it may be called) arises by reason of certain decisions of the High Court which would tend to show that an accused person has a right to be present. But when those cases are examined it can be seen that the decision of the Court depended upon the facts of the cases. One of these decisions is Jogesh Chandra Sen v. Nikunja Behari Choudhuri 76 Ind. Cas. 236 : AIR 1823 Cal. 651 : 27 C.W.N. 552 : Cri.L.J. 140. The judgment of the Court made reference to the Full Bench case of Hari Das Sanyal 15 C. 608 : 13 Ind. Jur. 55, and it was stated that whilst they in no way desired to depart from the decision of that Full Bench case yet they thought in all circumstances of the case that the accused should have had an opportunity of being present before a further enquiry was ordered.

In this case there is a definite statement by the learned Sessions Judge that the accused was not present before the Magistrate who dismissed the complaint u/s 203, Criminal Procedure Code, although it appeared that a vakalatnama had been filed on behalf of the accused before the Deputy Magistrate who had held local investigation of the case. But there is no evidence nor any suggestion that the accused in fact even appeared before that Magistrate. There therefore, appears to be no ground for saying that he had a right to appear before the Sessions Judge before he made the order which is complained of and which is dated 9th November, 1928. I see no ground for interfering with that order. Mr. Varma said all that could be said on behalf of his clients; but it would be impossible forms to hold that the accused had a right to be present and to say that the order of the Sessions Judge was without jurisdiction. In those circumstances the application is dismissed.