(1) The petitioner a6 and 7 in c. C. No. 261/97 on the file of j. F. C. M. , nalgonda charged with an offence punishable under section 500 i. P. C. , filed the present petitions aggrieved by the orders of the additional j. F. C. M. , at bhongir in crl. M. P. Nos. 2245/97 and 2246/97, dated 11 - 09 - 1997 in so far the order went against his interest with a request to quash that portion of the order.

(2) The brief facts of the case are that the petitioner a6 is the managing director, news today, and a7 is the chief editor of eenadu daily newspaper, eenadu compound, somajiguda, hyderabad. They are charged for an offence punishable under section 500 i. P. C. For the publication of a news item in eenadu daily newspaper dated 20 - 11 - 1997 under the caption "teand "3/32" s> $w", along with the persons who alleged to have been given the said statement on the basis of the private complaint given by one mr. V. V. Rajam, deputy conservator of forests, nalgonda district. After the case was taken on file, the petitioners herein and also some other accused filed applications under section 205 cr. P. C. Seeking dispensation of their personal attendance by giving various reasons. As far as the petitioner in crl. Mp. 4424/97 is concerned, it is his case that he is the chief editor and publisher of eenadu telugu news daily and newstime and managing director of news today private limited. As his company's headquarters is at hyderabad and as they are expected to travel length and breadth of the country in connection with the business affairs of the company, it may not be possible for him to attend every adjournment of the case and he may be represented by a special vakalat holder. Same is the case of the petitioner in crl. Mp. 4424/97. The magistrate in an elaborate order considered various pronouncements of the superior courts and ultimately having found justification in their claim, while dispensing with the personal attendance of the petitioners directed them to appear in court in person for examination under section 251 cr. P. C. And also to explain the circumstances incriminating against them at the time of examination under section 313 cr. P. C. As and when required. Questioning the operation of the said order the present miscellaneous petitions are filed.

(3) To appreciate the contention of the petitioners we have to look into the provisions of sections 205, 215, 313, 317 apart from 320 cr. P. C.

(4) Under section 205 (1) , after issuance of the summons, if the magistrate is satisfied that the personal attendance of the accused is not necessary he may dispense with his personal attendance and the accused may appear by his pleader. Under sub - section (2) at any stage of the proceedings, the magistrate in his discretion is empowered to direct the personal attendance of the accused and if necessary is empowered to enforce such attendance in the manner prescribed thereafter. Under section 251 cr. P. C. , as and when the accused appears in the court pursuant to the summons issued by the magistrate, the magistrate is expected to inform the gist of the allegations against him and should ascertain from the accused whether he pleads guilty or has any defence to make and at that stage it is not necessary to frame a formal charge. Under section 252, if the accused pleads guilty, the magistrate is empowered to convict him in his discretion. Under section 317, the magistrate/judge either on an application filed by the accused or suo motu is empowered to dispense with the personal attendance of the accused at any stage of the enquiry or trial under cr. P. C. For reasons to be recorded or in the event the accused persistently disturbs the proceedings of the court, if he is represented by a pleader. Again at the discretion of the magistrate at any subsequent stage of the proceedings he may direct the personal attendance of the accused. Under section 253, in petty cases after receipt of the summons the accused is given the liberty to plead guilty to the charge even without appealing before the magistrate by post or by messenger or by a letter contending his plea and also pay the amount of fine specified in the summons. Under sub - section (2) , on the basis of the information received from the accused, the magistrate is empowered to sentence him or direct him to pay the fine specified in the summons.

(5) Under section 313 (1) (b) , after the witnesses for the prosecution have been examined and before the accused is called on for his defence, shall explain the incriminating circumstances that were brought on record from the evidence of the witnesses and question the accused generally on the case. Proviso to section 313 (1) (b) , which is relevant to decide the issue on hand and which was introduced in the new act for the first time is extracted hereunder:

"provided that in a summons - case, where the court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b)."

(6) From the above provisions, it is seen while under section 251, the magistrate is expected generally to state the gist of the allegations levelled against him on his appearance after the receipt of the summons to find out whether he pleads guilty or not, but he is not expected to do anything except posting the case for trial in the event the accused pleads not guilty. Under section 313 (1) (b) , the magistrate will question the accused with reference to the incriminating circumstances that came on record so that he will not raise the question of prejudice, if any, caused to him on account of his non - examination at a subsequent stage of trial, in appeal or in revision.

(7) As far as the examination of the accused under section 251 is concerned, this court in raja dhanrajgirigichela v. Dherwangir, 1976 alt 34 held as follows :

"the object of the section is merely to appraise the accused of the particulars of the offence and to just enquire from him whether he pleads guilty or if he has any defence to make. It is difficult to construe how the object of the section is defeated if a pleader duly authorised by the accused appears before the court in the place of the accused at the stage of section 251 cr. P. C."

(8) From this it is evident that the accused need not personally attend the court for examination under section 251 cr. P. C.

(9) Coming to examination under section 313 cr. P. C. , the learned judge in the same judgment referred to the changes brought in the new act that came into force in 1973 by referring to proviso to section 313 (1) (b) under which the magistrate is empowered to dispense with the presence of the accused even at the stage of examination of the accused after completion of the trial in a summons case, observed in the following terms:

"moreover the provisions of the new code, are more liberal to the accused persons in petty - cases, or summons - cases. Section 206 provides for special summons in cases of petty offences requiring the accused to appear in person or by pleader or even to plead guilty to the charge and transmit the plea in writing by post or by messenger. Section 313, which is a substitution for the old section 342, contains an additional proviso not contained in the previous code. Under this proviso, the court is empowered to dispense with the compulsory examination of the accused under clause (b) of section 313, if the case in question is a summons case and the court has dispensed with the personal attendance of the accused under section 205 (1)."

The petitioner also relied on a judgment in rattan singh v. State ofh. P. , (1977) 4 scc 161 in which their lordships held as follows :

"examination of the accused under section 313 of the code is not a mere formality. Answers given by the accused to the questions put to him during such examination have a practical utility for criminal courts. Apart from affording an opportunity to the delinquent to explain incriminating circumstances against him, they would help the court in appreciating the entire evidence adduced in the court during trial."

The petitioner also relied on chandu lai chandrakerv. Puran mai and another, 1988 supp. Scc 570, wherein their lordships of the supreme court held that:

". That the appellant does not want to answer any of the questions which are going to be put to him by the trial court under section 313 of the code of criminal procedure and he further states that he will not raise the question of prejudice, if any, caused to him on account of his non - examination at subsequent stage of trial, in appeal or revision. In view of this statement, we are of the opinion that it is not necessary for the appellant to appear before the trial court and high court, directing the appellant to appear before the trial court for making statement under section 313 of the code of criminal procedure."

(10) Countering the arguments of the counsel for the petitioners, the counsel for the respondent relied on bibhuti v. State of west bengal, air 1969 sc 381, wherein the supreme court held that even in a case where the magistrate dispenses with the personal attendance of the accused, a pleader cannot represent the accused for purpose of examination under section 342 cr. P. C. Except where the accused is a company or a judicial person, or where the examination of the accused is not necessary under section 342, or not possible to examine the accused. In other words, his contention is that while the possibility of examining a special vakalat holder at other stages of the trial is permissible the accused alone has to be examined under section 342 after the completion of the trial.

(11) Admittedly, their lordships of the supreme court were dealing with a warrant case under the old procedure code. But, in the instant case, the petitioner was charged with an offence punishable under section 500 cr. P. C. , which is a summons case apart from being compoundable under section 320 cr. P. C. Further section 313 of the new code was introduced in place of section 342 of the old code. In this section the proviso which was extracted above was introduced for the first time and the same did not come up for consideration either before this court or before the supreme court. The proviso to section 313 (1) (b) clearly states that if the case is a summons case and the court has dispensed with the personal attendance of the accused, it may also dispense with his examination under section 313 (1) (b).

(12) From this it is evident that when once the presence of the accused is dispensed with under section 205 cr. P. C. , it is open for the magistrate in his discretion to dispense with the presence of the accused for examination under section 313 (1) (b) of the code as the presence of the accused is not a mandatory one. In fact, their lordships of the supreme court while explaining the utility and purpose of the examination of the accused under section 313 categorically stated that if the petitioner states that he will not raise the question of prejudice, if any, caused to him on account of his non - examination under section 313 of the code, at a subsequent stage of the trial or in appeal or in revision, the accused need not appear before the court even in a warrant case.

(13) From the judgment of the supreme court and the language used in the proviso to section 313 (1) (b) cr. P. C. It can be safely presumed that in a summons case, the presence of the accused need not be insisted by the magistrate even for examination under section 313 (1) (b) of the code provided he gives an undertaking that he will not raise the question of prejudice, if any, caused to him on account of his non - examination under section 313 of the code, at a subsequent stage of the trial or in appeal or in revision. Apart from all these things the accused is charged with an offence punishable under section 500 cr. P. C. Which is compoundable under section 320 of the code.

(14) For all these reasons, i hold that the magistrate erred in directing the petitioners to appear for examination under sections 251 and 313 (1) (b) and the order to that extent is set aside and these crl. M. Ps are allowed.

(15) The magistrate is directed to proceed with the enquiry without insisting for the personal attendance of the accused.