Abdul Hamid v. King-Emperor

Mullick, J.:— (after stating the facts, as set out above, proceeded as follows):—

The point made before us is that the trial is bad because the Deputy Magistrate had no power to allow Abdul Hamid to be represented by a mukhtar and to hear the examination-in-chief of the prosecution witnesses in his absence. I think this contention must prevail. Section 205, Criminal Procedure Code, applies only to cases in which the Magistrate has issued a summons in the first instance. It does not apply to a case, such as the present, where the accused has been arrested without or after the issue of a warrant. It would also appear that Abdul Hamid never asked to be represented by a mukhtar or pleader, but I doubt whether the defect in jurisdiction would have been cured even if there had been an express request on his part; for if the Magistrate had no jurisdiction to hear the case in the absence of the accused, jurisdiction could not be conferred by any consent. The Magistrate seems to have been under the erroneous impression that Abdul Hamid had made a petition and the fact seems to be that the accused, Abdul Razak, signed and filed a petition, the body of which purports to be a petition by Abdul Hamid requesting for permission to appear by proxy. It does not appear that Abdul Razak had any authority to make any application on behalf of Abdul Hamid and the petition is unintelligible unless it be taken as a request by Abdul Razak to allow Abdul Hamid to be represented by proxy in order that the case against Abdul Razak might not be further delayed. The order passed upon this by the Magistrate was that Abdul Hamid was to be represented by Mukhtar Babu Sheo Nandan Lal; but this gentleman was not Abdul Hamid's mukhtar at all and how he came to be appointed is not known. In Abdul Razak's petition it was prayed that either Moulvi Farid-ud-din or Babu Bajrang Sahay might be appointed to represent Abdul Hamid and it seems that on the 19th May, finding that Babu Sheo Nandan had no authority to appear for Abdul Hamid, the Magistrate recorded an order permitting Bajrang Sahay to represent him. Therefore in this case the Deputy Magistrate's order was bad for two grounds: first, because it was not a case in which a summons had been issued, and, secondly, because the accused had never asked for permission to appear by his pleader or mukhtar.

The fact that the accused did not take the objection in the trial Court does not appear to me to be material. If the defect could be cured by section 537, Criminal Procedure Code, his acquiescence would have been an important factor, but as, in my opinion, there was a complete absence of jurisdiction to hold the trial in his absence the question of the application of section 537 does not arise.

The result is that the conviction and sentence passed upon Abdul Hamid will be set aside and the case will be remanded to the Sub-divisional Magistrate of Araria for a de novo trial.

The petitioner will surrender before the District Magistrate when called upon to do so.

Bucknill, J.:— I agree.

Case remanded.