Shanti Swarup Agarwal vs The State of West Bengal and Another

Ashim Kumar Roy, J.—The present petitioner has been facing his trial before the Learned Judicial Magistrate, 4th Court, Howrah of a charge u/s 34(5) of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972. In response to summons on April 24, 2009 the petitioner appeared in Court and was released on bail. Thereafter, on July 24, 2009, the Learned Court below allowed the petitioner''s application u/s 205 of the Code of Criminal Procedure. In the meanwhile, 2nd December, 2009 was fixed for recording of plea and the petitioner was directed to be personally present in Court. The said order whereby the petitioner was directed to be personally present in court for recording his plea is the subject matter of challenge in this criminal revision.

Heard Mr. Sandipan Ganguly, learned Advocate appearing for the petitioner as well as Mr. Sobhendu Sekhar Roy, learned Advocate for the State and Ms. Sutapa Sanyal, learned Advocate for the complainant.

The offence punishable u/s 34(5) of the West Bengal Agricultural Produce Marketing (Regulation) Act, 1972 is punishable only with the sentence of fine and therefore is a summons case and the trial relating to such offence to be held following the procedure prescribed for trial of summons cases.

It is a settled legal position that in a case where the offence relates to a summons case, and the personal appearance of the accused has been dispensed with u/s 205 of the Code, the Counsel of the accused may be permitted to take plea on his behalf. Admittedly, in this case, the accused has been enjoying exemption u/s 205 of the Code of Criminal Procedure. It is no doubt true even when an accused is enjoying such exemption the Court may always direct him to be present in Court on any particular day for his examination u/s 251 of the Code, however, such discretion must always be exercised by the Court judiciously and not mechanically. Thus, when such an order is passed in respect of an accused whose personal appearance has been exempted u/s 205 of the Code, the Court must indicate very good reasons, as to why such exemption has been withheld and he has been directed to be personally present in Court. No order in this regard can be passed without assigning reasons.

However, having gone through the impugned order, I find the Learned Magistrate quite mechanically and without assigning any reason passed the order impugned. Accordingly, the order impugned is set aside.

The Learned Magistrate is directed to examine the accused/petitioner u/s 251 of the Code through his Learned Advocate who is representing him u/s 205 of the Code on the next date fixed for recording of the plea.

The Learned Court below is requested to proceed with the matter on continuous basis and to conclude the trial as expeditiously as possible.

Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.