1. This application is directed against an order dated 16-8-1978 passed by the Sub-Divisional Judicial Magistrate, Sasaram, by which the learned Magistrate dismissed a petition of the petitioners filed under Section 205 of the Code of Criminal Procedure (hereinafter to be referred to as ‘the Code’) and ordered issuance of non-bailable warrant of arrest against the petitioner No. 1. The petitioner No. 1 is one Ravi Singh, Mine Manager, Pipradih Limestone Mine and petitioner No. 2 is Parshva Properties Limited, owner of the aforesaid mine. The facts leading to the impugned order are shortly these:— On 19-4-1978, the Labour Enforcement Officer (Central), Dehri-on-Sone filed a petition of complaint against the petitioners under Rule 22 of the Payment of Wages (Mines) Rules, 1956 (hereinafter to be referred to as ‘the Rules’) for the contravention of the Rules 5, 5A, 17(1), 8(1)(i) of the aforesaid Rules. It is not necessary to state the actual contravention made by the petitioners and suffice it to point out that some of the contraventions were punishable with fine which may extend to Rupees 200/- and others were punishable with fine which may extend to Rs. 500/- only. The learned Chief Judicial Magistrate, Sasaram, took cognizance on the complaint and transferred the same to the court of Sri N.K Singh, Sub-Divisional Judicial Magistrate, Sasaram, for disposal. When the record was received in the court of the Sub-Divisional Judicial Magistrate, the learned Magistrate recorded an order dated 24-5-1978 fixing 15-7-1978, for issuance of summons against the accused. On 15-7-1978, a petition was filed before the learned Magistrate by the petitioners under Sec. 20 of the Code. The petitioners stated in the petition that Adishwar Prasad, Commercial Manager-cum-Superintendent, who represented the petitioner No. 2 had to represent the company at various places, such as Calcutta, Dhanbad and Patna. As regards the Mine Manager Sri Ravi Singh, it was that he was in charge of the entire mines operation at Pipradih and that his frequent absence from the mine was likely to affect the mining operation adversely. The petitioners also stated that the offences alleged against them were of petty and trivial nature; that the petitioners' lawyers were prepared to represent them in court and, therefore, they may be allowed to be represented through the lawyers. The petitioners in the same petition undertook to appear before the learned Magistrate, if and when so directed by him. The learned Magistrate fixed 18-7-1978 for hearing of the petition. For some reason which is not clear, the petition was not heard on 18-7-1978 and next date fixed in the case was 16-8-1978. On that date the learned Magistrate passed the impugned order which is as follows:—
“A petition under Section 205 Cr. P.C on behalf of accused Ravi Singh dated 15-7-1978, was moved. Heard. From perusal of the record it appears that in this case summons to the accused has already been issued on 3-8-1978, as per order sheet dated 25-5-1978. Therefore, this petition under Section 205 Cr. P.C is not maintainable as it can be filed only at the time when summons has not been issued and admittedly it has been filed after that. Moreover, there is not any valid and sufficient ground mentioned in the petition to bring him under the purview of the provisions mentioned under the Cr. P.C The only ground mentioned in the petition is that the petitioner is overbusy. That is not the sufficient ground.
Hence in view of my observation made above, the petition, as mentioned above, is hereby rejected.
As the accused has knowledge of the issue of summons as mentioned in his petition dated 15-7-1978, and even then he has not appeared, hence, issue W/A non-bailable against the accused person.
To 26-8-1978 for appearance.”
2. Learned counsel for the petitioners has submitted that the learned Magistrate was in error in supposing that the petitioners could not be given protection of Section 205 of the Code and that no ground has been made out by the petitioners for granting the relief prayed for by them. Learned counsel contends further that the order of issuance of non-bailable warrant of arrest was patently illegal and gross abuse of the process of the Court.
3. Section 205(1) of the Code reads thus:—
“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.”
4. Learned counsel for the petitioners submits that reference to issue of summons in this provision of the section was made only to distinguish such cases from those in which the Magistrate issues warrant instead of summons at the first instance. He pointed out that in the instant case the offences complained against were all punishable with payment of fine and the maximum fine which could be imposed against the petitioners was a sum of Rs. 500/-. Therefore, not only summons was required to issue against the petitioners in such a case, but if the Magistrate felt satisfied he could in exercise of the powers in Section 206 of the Code require the accused, if they so desired to plead guilty to the charge, to transmit before the specified date in the summons by post or messenger to the Magistrate the plea of guilt in writing and the amount of fine specified in the summons. The learned Magistrate was, therefore, clearly in error in supposing that he could not grant relief to the petitioners under S. 205 of the Code.
5. A reading of the impugned order gives an impression that the learned Magistrate had no proper understanding about the scope and object of Section 205 of the Code. Section 205(1) of the Code corresponds to S. 205 of the old Code where identical provision had been made. S. 205 of the old Code had come up for consideration before the different High Courts from time to time and I will refer to some of the decisions which have been relied upon by the petitioners. In the case of Ummal Hesanath (AIR 1947 Mad 433) His Lordship Rajamannar, J. as he then was, observed:—
“It was held in 2 Pat. 793 by a Division Bench of the Patna High Court that S. 205, Criminal P.C applies only to cases in which the Magistrate has issued a summons in the first instance and not where the accused has been arrested without or after the issue of a warrant. This conclusion appears to be inevitable from the language of the section”.
6. In another case in the same High Court in Re Narayana Aiyar (AIR 1947 Mad 66) his Lordship Kuppuswami Aiyar, J. observed:—
“The petitioner was accused of having committed offences punishable under Sections 323 and 324, Penal Code. The procedure to be followed in such a case is as in a summons case. But unfortunately the Magistrate happened to issue a bailable warrant and having issued a bailable warrant, when the petitioner sought to have his personal attendance in Court dispensed with, the Magistrate dismissed his application observing that the personal appearance of the accused cannot be dispensed with as in this case the prosecution of the accused was secured after the issue of a bailable warrant. The Magistrate was not justified in taking this stand on an incorrect order of his for refusing the application. Even in a summons case it will be open to the Magistrate to insist upon the personal appearance of the accused. But then he will have to give reasons for the same. Since he has not given any such reason in his order, it is set aside and the petition is remanded to him for considering the question whether there are sufficient grounds in this case for not dispensing with the personal appearance of the accused………”
7. In the case of Helen Rubber Industries, Kottayam v. State of Kerala (1973 Cri LJ 262) the Kerala High Court said in paragraph 21 of the report “All these cases, as I have already stated, are cases under the Companies Act and all are private limited companies. The learned Counsel for the petitioner submitted before me that if personal attendance was exempted on the first hearing day itself, the cases could have been disposed of on that day. It is in this context that the salutary provisions in Ss. 205 and 540-A should be construed in the interests of expeditious disposal of cases. I would have been happy if the learned District Magistrate had permitted the accused to be represented by pleaders and collected the fine and disposed of the cases on the first hearing date itself. I find it difficult to agree with him in the orders passed by him in these cases which according to me are neither warranted by the circumstances of the case nor necessary in the interests of justice. I feel that interest of justice has suffered in these cases by the refusal to grant exemption prayed for. Even in cases where the District-Magistrate himself had issued summons to the accused to appear either in person or through pleader, he has not allowed the pleader to represent the accused and in some other cases he has issued warrant. I am constrained to observe that this was a negation of justice. It behoves me therefore to emphasise the liberality built in the section enumerated above enabling the Magistrates to extend their benefit's to the accused appearing before them and to avoid unnecessary harassment. I therefore hold that in all trivial and technical cases where the accused are ladies, old and sickly persons, workers in factories, daily wage earners, other labourers and busy business people or industrialists Courts should invariably exercise discretion liberally to exempt such persons from personal attendance”.
8. More or less the same view has been taken by the Allahabad High Court in Bhagwan Das v. State (AIR 1953 All 630). I have referred to the aforesaid cases in some details as the decisions clearly bring out the scope and object of Section 205 of the Code. I have already pointed out that Section 206 of the Code itself clearly shows the trend of the law relating to the personal appearance of an accused in petty cases. Therefore, the learned Magistrate was clearly in error in holding that as no ground had been made out by the petitioners for exempting the personal appearance of the accused through their lawyers, the application filed by the petitioners could not be allowed. He should have directed his enquiry to find out as to whether there was any justification for refusing their prayer for exemption from personal appearance.
9. The order regarding issuance of non-bailable warrant of arrest against the petitioners was much worse. The impugned order of the learned Magistrate itself shows that summons had been issued against the accused persons in this case on 3-8-1978. I have tried in vain to find out from the records of the learned Magistrate the date for which the summons had been issued against the accused persons. We do not know, therefore, as to whether the date for the appearance of the accused had already expired when the learned Magistrate had ordered issuance of non-bailable warrant against the accused. It will be recalled that the non-bailable warrant of arrest was ordered to be issued only 13 days after the issuance of summons against the accused. The order of the learned Magistrate was as whimsical as it was arbitrary and it sadly demonstrates the tendency to exhibit power. I have no doubt in my mind that the order regarding issuance of the non-bailable warrant of arrest against the petitioners was a gross abuse of the process of the court.
10. The learned counsel for the State, however, has submitted that the inherent powers of this Court cannot be exercised to interfere with the order passed by the Magistrate under Section 205 of the Code. He referred me in this connection to the decision of the learned Single Judge of this Court in the case of Nand Lal Poddar v. State (1979 BBCJ (HC) 132). This was also a case where under Section 205 of the Code order had been passed rejecting the prayer of the accused for exempting their appearance. The accused had moved this Court in an application under Section 482 of the Code for quashing that order. The learned Single Judge held no doubt that inherent powers of the Court could not be exercised for interfering with the impugned order I, however, do not read the decision as laying down a general rule of law that under no circumstances this Court can interfere with an order under Section 205 of the Code nor such general rule of law could be laid down in view of the decision of the Supreme Court in the case of Madhu Limaye v. State Of Maharashtra. ((1977) 4 SCC 551 : AIR 1978 SC 47). His Lordship Untwalia, J. who spoke for the Court, said:—
“As pointed out in Amar Nath's case ((1977) 4 SCC 137 : AIR 1977 SC 2185) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The legislature in it's wisdom decided to check this delay by introducing Sub-section (2) in Section 397. On the one hand a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include sub-section (2) of Section 397 also, “shall be deemed to limit or affect the inherent powers of the High Court,” but, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out? In our jpinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court… Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused up to the end? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice.”
11. It will be noticed, therefore, that according to the Supreme Court inherent power of the High Court can be exercised even against interlocutory orders if the impugned order brings out a situation which is an abuse of the process of the Court or for the purpose of securing ends of justice, interference by the High Court is considered absolutely necessary. The question as to whether a situation showing an abuse of the process of the Court has arisen or whether for the purpose of securing ends of justice interference by the High Court was absolutely necessary will depend upon the facts and circumstances of each case. Therefore, I take the decision in Nand Lal Poddar (Supra) as a decision on the facts and circumstances of that particular case. I have no doubt in my mind that in the instant case a situation has arisen which is an abuse of the process of the court and I am also of the opinion that for securing end of justice interference by this Court is absolutely necessary. In the result, therefore, the application is allowed, the impugned order of the learned Magistrate rejecting the prayer of the petitioners under S. 205 of the Code and directing issuance of non-bailable warrant of arrest against the petitioners is hereby quashed. The learned Magistrate is directed to exempt personal attendance of the accused under Section 205 of the Code and permit them to appear through their lawyers. It will of course be open to the learned Magistrate if at any stage of the trial he considers the personal appearance of the accused necessary, to direct them to so appear.
12. Petition allowed.