1. This is a revision by Aditya Pd. Bagchi against the order of the Sessions Judge of Allahabad confirming an order of a Special Magistrate of Allahabad dispensing with the presence of Jogendra Nath Maitra, accused opposite party in a trial under Section 500, Penal, Code.
[1a]. The applicant filed a complaint against the opposite-party and the case was transferred to an Honorary Special Magistrate. The Magistrate issued a bailable warrant for the arrest of Jogendra Nath Maitra and fixed 12-7-1946, for the hearing of the case. The warrant was actually issued on 20-6-1946, and was served and Jogendra Nath Maitra was released on bail. On the Sate fixed for hearing, namely, 12-7-1946, Jogendra Nath Maitra did not appear personally in Court. An application was filed by his counsel on his behalf praying that his personal appearance be dispensed with on the ground that he was ill and was unable to attend the Court. The Magistrate, thereupon, ordered a summons to issue for the appearance of Jogendra Nath Maitra for the next date and permitted him to appear through counsel.
2. The matter first came up before a learned single Judge of this Court who referred it to a larger Bench in view of two important questions arising in the case. These questions are:
1. What is the precise extent of the jurisdiction possessed by a Magistrate to dispense with the personal attendance of an accused person under Section 205, Criminal P.C.? and
2. Whether the trial of an accused person in his absence must always be held to be null and void, even though the attendance of the accused person is dispensed with by the Court upon his own application?
3. The contention, on behalf of the applicant, is that a Magistrate is competent to dispense with the attendance of an accused person and to allow him to appear through a pleader only in those cases in which he issues a summons in the first instance and that if a warrant has been issued in the first instance a Magistrate cannot exercise the power of allowing an accused to appear through a pleader. On the other band, it is contended by the opposite-party that the fact that the Magistrate issues a warrant in the first instance does not deprive him of the power to dispense with the presence of the accused and to allow him to appear through counsel and that the Magistrate could do so by later issuing a summons. We are of opinion that neither of these contentions is correct.
4. Section 205, Criminal P.C., reads as follows:
1. (i) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused, and permit him to appear by his pleader.
2. But 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 manner, hereinbefore provided.
5. It is remarkable that the words "in the first instance" do not appear in Section 205, Sub-section (1). That section only says that whenever a Magistrate issues a summons, he may dispense with the personal attendance of the accused and permit him to appear by his pleader. The mere fact that Section 205 follows Section 204, in the same chapter is no good reason for introducing the words in the first instance" after the word 'summons', in Sub-section (1) of Section 205, Criminal P.C. If that was the intention of Legislature, it could have easily put those word, in the section. No great stress also need be laid on the word "whenever" used in this section. That word may mean either "in any case in which" or "on every occasion when". This will only mean that when a Magistrate is issuing a summons he may dispense with the personal attendance of the accused and permit him to appear through his counsel and he may consider this aspect as many times as he has occasion to issue a summons to the accused, in case there is necessity for summoning the accused again in the same case due to non-service of the summons issued previously or any other reason. This section obviously applies to a stage where the accused person has not yet appeared before the Magistrate and where he is considering the issue of a process, whether it be a summons or a warrant, for his appearance before him. It provides that where a Magistrate decides to issue a summons, he may dispense with the personal attendance of the accused and permit him to appear by his pleader. This will become clear if one reads the form of summons given in the Criminal P.C. The form read thus:
Whereas your attendance is necessary to answer to a charge of (state shortly the offence charged) you are hereby required to appear in person (or by pleader as the case may be) before the (Magistrate).
It is obvious, therefore, that when a Magistrate is issuing a summons to an accused person, he may exercise his discretion and order him to appear personally or by his pleader. Section 205, therefore, gives power to a Magistrate when issuing a summons for the appearance of an accused to decide whether he would order the accused person to appear before him personally or by a pleader. Section 205 does not, in our opinion, deal with the jurisdiction of a Magistrate to dispense with the personal attendance of an accused person after a summons or warrant has been served on the accused. That question would usually arise after an accused has appeared in Court and there seems to be no reason why this section should be read as debarring a Court from considering the request of an accused to appear, by a pleader merely because a warrant had been issued the first instance. We are of opinion that Section 205, only applies to the stage where a Magistrate is considering the issue of a summons or warrant for the appearance of an accused person and no further. This is our answer to the first question.
6. A number of cases have been cited in this connection by both sides. Some of these, however, are not very helpful because though they tend to support the view that when a Magistrate issues a warrant in the first instance, he cannot exempt the personal attendance of the accused, no reasons have been given for this view and the words 'in the first instance' have been assumed to exist in Section 205, Sub-section (1). These are the cases : Emperor v. Mt. Zalikhan ('13) 21 I.C. 476, Mt. Bachal v. Emperor 1 A.I.R. 1914 Sind 51, Emperor v. Sardar ('17) 4 A.I.R. 1917 Lah. 292, Abdul Hamid v. Emperor 11 A.I.R. 1924 Pat. 46 and In re Narayana Aiyar 34 A.I.R. 1947 Mad. 66. In another case, Emperor v. Mt. Zalikhan ('13) 21 I.C. 476, a similar view has been taken on the ground that 8. 205 has to be read and construed with reference to the preceding Section 204 and also with reference to the heading of the chapter in which both the sections occur, namely, "Of the commencement of the proceedings before Magistrates". The next case in which this section was considered is that in In re Ummal Hasanath ('47) 34 A.I.R. 1947 Mad 433. In this case, a distinction was drawn as to the stage at which Section 205 and Section 353, Criminal P.C., applied. This distinction has been brought about as follows:
There appears to be a difference between the stage contemplated by Section 205 and that contemplated by Section 353. Section 205 deals with the initial appearance of the accused person before the Magistrate, whereas Section 353 deals with the presence of the accused during the trial of the case or during enquiry.
We respectfully agree with this view and it appears to us that this is the proper view to take of the scope and extent of Section 205, Criminal P.C. It should not be extended to cover the powers of a Magistrate for exemption of the attendance of an accused person at any other stage except when the Magistrate is issuing process at the commencement of the proceedings.
7. The last case to which we may refer is that in Jagdish Narain v. Emperor 27 A.I.R. 1940 All. 178. It is this case which the learned Magistrate has practically followed when he issued a summons for the opposite-party on 12th July 1946 and then decided to exempt the personal attendance of the opposite-party. There is, however, one distinction between the facts of this case and those of the case before us. In this case though a warrant had been issued in the first instance, it was never served and was cancelled by the Magistrate. Thereupon, it was held that the position was as if the Magistrate had really issued a summons for the appearance of the accused and could, therefore, exempt his personal attendance. This case is no authority for the procedure adopted by the Magistrate in the case before us where the warrant had been served and the accused person was praying for exemption from personal attendance on the ground that he was ill.
8. The answer to the second question does not, in our opinion, admit of any doubt. Generally speaking, the trial of an accused person must be held in his presence. But there are provisions in the Criminal P.C., which admit of exceptions to this general principle. We may, in this connection, refere to Section 353 which appears in chapter XXV which relates to the method of taking and recording evidence in inquiries and trials. This chapter applies to all inquiries and) trials whether before Magistrates, Courts of Sessions or High Courts. The section-reads as follows:
Except as otherwise expressly provided all evidence taken under Chapter XVIII, XX, XXI, XXII and XXIII shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader.
This section clearly provides that all evidence shall be taken in the presence of the accused or, when his personal attendance is dispensed with in the presence of his pleader. Obviously, there, fore, where evidence is taken in the presence of the pleader of an accused after dispensing with his personal attendance, the trial cannot be null and void because there is a definite provision for taking such evidence in the presence of his pleader. In support of this view, we may refer to the cases in Emperor v. C.W. King ('12) 14 Bom. L.R. 236, Kandamani Devi v. Emperor 9 A.I.R. 1922 Mad. 79 and In re Ummal Hasanath ('47) 34 A.I.R. 1947 Mad. 433.
9. Then there is Section 866, Sub-section (2), Criminal P.C., which provides as follows:
The accused shall, if in custody, be brought up, or, if not in custody, be required by the Court to attend to hear judgment delivered, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted, in either of which oases it may be delivered in the presence of his pleader.
This provides in what cases an accused person need not be himself present when judgment is delivered at the conclusion of the trial.
10. Lastly there is Section 540 U) which provides as follows:
At any stage of an inquiry or trial under this Code, where two or more accused are before the Court, if the Judge or Magistrate is satisfied, for reasons to be recorded, that any or more of such accused is or are incapable of remaining before the Court, he may, if such accused is represented by a pleader, dispense with his attendance and proceed with any inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused.
11. These are the three sections which indicate how far the trial of an accused person can be held in his absence but in the presence of his pleader. Section 366, Sub-section (2) and Section 540(A) are express provisions in this connection, while Section 353 must, by necessary implication, be held to confer powers on the presiding officer whether he is a Magistrate, a Sessions Judge or a Judge of the High Court, to dispense with the personal attendance of an accused person. Our answer to the second question, therefore, is that the trial of an accused person in his absence cannot be held to be null and void if the attendance of the accused person is dispensed with by the Court upon his own application and if he is represented by a pleader of his choice during suet absence.
12. We now come to the facts of the present, case. The Magistrate having issued a warrant for the appearance of the opposite party could not and actually did not dispense with his personal appearance when issuing the warrant. The warrant was a bailable one and was served on the opposite party. In the normal course, the opposite party should have appeared before the Magistrate in answer to the warrant. An application was presented on his behalf by counsel that he was ill and bed ridden and could not appear in Court. The applicant, therefore, prayed that the Court should withdraw the warrant and issue a summons permitting him to appear through counsel. The Magistrate obviously could not withdraw the warrant after it had been served. He, however, relied on the case in Jagdish Narain v. Emperor 27 A.I.R. 1940 All. 178, and issued a summons for the appearance of Jogendra Nath Maitra for the next date and, when issuing this summons to him, permitted him to appear through counsel. As we have already mentioned, that case stands on its own peculiar facts inasmuch as the warrant had not been served there. Ordinarily, it would seem odd that a Magistrate should after a warrant had been served against an accused and after the accused's failure to appear in obedience to the warrant, issue a summons for his attendance at the next hearing. But in the particular circumstances of this case, we are of opinion that the order passed by the Magistrate was not improper. He was satisfied from the medical certificate and the affidavit filed by the accused that he was ill and unable to attend. This meant that the accused submitted to the authority of the "Court and did not attend because Tie" was not "physically fit to attend Court. In the circumstances it would not have been a proper order on the part of the Court to issue another warrant against the accused, unless it felt that the summons would not be served or would not be obeyed. The Magistrate was free, in our opinion, to decide what further steps to take in order to get the presence of the accused in his Court for further proceedings in the case. He decided to issue a summons. He could have simply fixed the next date of hearing and could have communicated that date to the accused through his counsel who appeared in the case. As, in our opinion, the Magistrate had power to dispense with the presence of the accused at the hearing, he could have dispensed with the appearance of the accused, even if he had communicated the next date to the accused through his counsel. We, therefore, dismiss this revision.