Smt. Savitri Sahuani and Another vs Maguni Sahu

P.K. Mohanti, J.—This criminal revision is directed against an order rejecting the prayer of the accused for exemption from personal attendance in Court u/s 205, Criminal Procedure Code.

On a complaint petition filed by the opposite party the Petitioners along with their husbands were summoned to stand their trial for an offence u/s 380, Indian Penal Code. In obedience to the summons the Petitioners appeared before the Court through a lawyer and moved for bail. They also moved for exemption from personal attendance. The learned S.D.J.M. allowed the prayer for bail. As regards the prayer for exemption from personal attendance the learned S.D.J.M. made the following order:

...they are allowed to be represented through the lawyer u/s 205. Code of Criminal Procedure only after appearing in the Court in obedience to the summons issued to them.

Aggrieved by this order the Petitioners have come up in revision.

It is urged in this criminal revision that there are no sufficient grounds for insisting upon personal attendance in Court of the accused who are purdanashin ladies.

Section 205(1), Code of Criminal Procedure gives the Magistrate jurisdiction to dispense with personal attendance of the accused and the power to permit him to appear through his pleader at the initial stage. Sub-section (2) authorises the Magistrate to compel personal attendance of the accused at any later stage whenever it is considered necessary. The power under Sub-section (1) has to be exercised at the stage when the Magistrate is considering the issue of a summons or warrant for the appearance of the accused at the commencement of the proceeding - See Aditya Pd. Bagchi Vs. Jogendra Nath Maitra, , Sultan Singh Jain v. The State 53 (1952) CriL.J. 66 (F.B.) and Nawab Zain Yar Jung and Others Vs. Dr. Raghotam Rao, .

Before 1923 there was no provision in the Code except Section 205 to exempt personal attendance of the accused It was then felt that the scope and extent of this provision was limited to the stage of commencement of the proceeding when the Magistrate issued summons and that the powers u/s 205(l) did not extend to exemption during trial. In 1923, Section 540-A, was introduced by the Amendment Act 18 of 1923. Under Sub-section (1) of that section, the trial Court was expressly conferred with power to grant exemption from personal attendance of the accused with there were two or more accused and when such accused is or are incapable of remaining before the Court at any stage of enquiry or trial. The scope and extent of the section as it then stood was found to be unduly narrow and it was felt necessary to enlarge the powers of the Court in this respect for expeditious disposal of cases. Therefore, Section 540-A, was amended by the Amendment Act 26 of 1955 and a new Sub-section (1) was substituted which enlarged the powers of the Court to dispense with the personal attendance of the accused when represented by a lawyer, if such attendance was net necessary in the interests of justice. Thus by the joint operation of Section 205(1) and Sub-section (1) of Section 540-A, a Magistrate was conferred with the power to exempt the accused from personal attendance both at the time of issuing summons and during enquiry or trial. The legislative intention in enacting these provisions is to enable the Court to freely exercise the power to exempt personal attendance of the accused in the interests of justice and for expeditious disposal of cases.

In the case of Munni Begum Vs. State, , the Court observed:

It cannot be disputed that the present tendency of the Legislature is to permit the accused to be represented by a pleader for all purposes, particularly in petty cases, and not to compel him to come to Court personally in all cases. Cases under the Motor Vehicles Act and under some of the Municipal statutes may be mentioned as instances in point.

In Mst. Kanchan Bai Vs. The State, , the principle governing orders to be passed by Magistrates in dispensing with personal attendance of women were laid down. It was held there that in the matter of dispensing with personal attendance of women accused, the discretion u/s 540-A should be liberally exercised by the subordinate Courts.

In Rusi Biswal Vs. Nakhyatramalini Devi and Others, , which was a case relating to a purdanashin lady, it was held that to insist on her personal attendance would involve unnecessary waste of time and harassment to her.

In Pitamber Das v. Gobinda Chandra Satpathy 41 (1975) C.L.T. 1096, the Magistrate dismissed the petition for representation u/s 205, Code of Criminal Procedure merely on the ground that the said petition was filed at the initial stage of the case and the Petitioners had not appeared before the Court even for once. This Court allowed the prayer for representation observing as follows:

The grounds ''on which that petition was dismissed are certainly not good and convincing grounds for rejecting such a prayer. In a matter of this nature it is obligatory on the part of the Magistrate to indicate convincing reasons for refusing the prayer for representation by lawyer as in this case.

In the instant case, the learned Magistrate while issuing the summons did not pass any order u/s 205, Criminal Procedure Code. But in the summons which was issued under the signature of the learned Magistrate in Form No. 1 of the Second Schedule of the Code of Criminal Procedure, the words "or by pleader" were not scored out. Thus the summons itself permitted the Petitioners to appear either in person or through a pleader. The learned Magistrate has overlooked this aspect of the case. He has, not assigned any reason for holding that personal attendance of the Petitioners was necessary at the initial stage. No material has been placed before me justifying an order for personal appearance. I do not see any reason why the teamed Magistrate should have insisted upon personal appearance of the Petitioners before commencement of the trial.

For the reasons stated, this criminal revision is allowed and the order of the learned Magistrate is set aside. The Petitioners be permitted to appear through their lawyer until the learned Magistrate finds it necessary to direct otherwise under Sub-section (2) of Section 205, Criminal Procedure Code.

Revision allowed.