Judgment:
ORDER
S.R.K. Prasad, J.
1. The petitioner invokes the inherent powers of this Court under section 482 of Criminal Procedure Code to quash the orders passed in Crl.M.P.No.1384 of 2001 dated 4-5-2001 on the file of the II Metropolitan Magistrate , City Criminal Court, Hyderabad and also for necessary direction to accept the special vakalat filed by the counsel.
2. The facts that led to filing of the petition can be briefly stated as follows.The first respondent herein presented a complaint in CC No.257 of 2000 on the file of II Metropolitan Magistrate, Criminal Courts, Hyderabad for the offences punishable under Section 138 of Negotiable Instruments Act against the petitioner company, represented by its Chairman viz., Dasari Narayana Rao.
3. The Second Metropolitan Magistrate, issued summons to the accused/petitioner herein and after receipt of summons, the company engaged Sri Nandigam Krishna Rao as its counsel who has presented a special vakalat and a petition under Section 305 of Cr.P.C. vide Crl.M.P.No.1384 of 2001 on the file of the II Metropolitan Magistrate , Hyderabad.Thereafter, the learned II Metropolitan Magistrate, has dismissedthe same on 4-5-2001 on the ground that the case is coming up for examination of the accused under Section 251 of Cr.P.C. Aggrieved by the same, the petitioner presented the present petition.
4. Learned counsel for petitioner assails the order of the Magistrate on the ground that his presence is not required and it can be dispensed with and the Court has got ample power to dispense with his power under Section 205 of Cr.P.C by permitting the advocate to represent the petitioner by way of special vakalat. It is also contended by the petitioner's counsel that the Court has got ample jurisdiction to get the plea of the accused/petitioner recorded by the counsel having special vakalat .
5. On the other hand, learned Public Prosecutor contends that it is not a fit case, where inherent powers can be exercised to quash the proceedings.
6. Adverting to the said contentions, it is necessary to decide about the scope and powers of the Magistrate in entertaining application under Section 205 of Cr.P.C. permitting an advocate to represent the accused/petitioner under special vakalat.
7. Section 205 of Cr.P.C. reads as follows:
'Magistrate may dispense with personal attendance of accused:-- (1) Whenever 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 the manner hereinbefore provided.'
8. It is clear from the provisions of Section 205 Cr.P.C that whenever a Magistrate issues summons, it can dispense with the presence and permit him to appear by his pleader. No further guidelines are mentioned under Section 205 Cr.P.C. It is left to the discretion of the Magistrate to exercise his discretion judicially. It is clearly stated that the Magistrate has to record reasons before allowing or disallowing an application under Section 205 of Cr.P.C. seeking permission to represent a counsel by special vakalat.
9. The only ground mentioned in the order is that accused presence is required for his examination under Section 251 of Cr.P.C. The Supreme Court in MAHANTH KAUSHALYA DAS Vs . STATE OF MADRAS, : 1966CriLJ66 held that the requirements of the section are mandatory and a violation of these provisions vitiates the trial and renders the conviction legally invalid. It is categorically stated that the presence of the accused is necessary since the plea has to be recorded in the words used by the accused.
10. The High Court of Calcutta in THEKETHODIKA MAMMADUNNI Vs.ADANGALPURAVAN ALAVIKUTTY, 1988 CRL. L.J. 53 held as follows:
'Mr.Safiulla appearing for the State drew my attention to sub-s(2) of Sec.205 which lays down that the Magistrate enquiring into or trying the case may in his discretion at any stage of the proceeding direct the personal attendance in the manner hereinbefore provided. That in the instant case the Magistrate used his discretion and asked the petitioner to appear before him for being examined u/s.251. There is nothing wrong in it. This is not an abstract proposition of law but in the facts of the case when the id.Magistrate has directed the petitioner who was exempted u/s205 Cr.P.C from appearing before him, to appear h has to comply with such a direction by the Id.Magistrate.I have already noted that Id Magistrate directed him to remain present only on the ground that he thought that the present of the accused was an absolute necessity while being examined u/s 251 Cr.P.C. The discretion of the Id.Magistrate must be exercised judicially. When he has exempted one accused person from appearing before him during trial he must indicate good reasons why such exemption was being withheld. In the instant case that has not been done. In appropriate cases power under sub(2) of section 205 can be profitably utilised but in the facts of this case the discretion used by the Id.Magistrate was founded on a wrong notice of law.In this connection we may also refer to the provisions of Section 313 Cr.P.C. As per proviso to cl.(1)(b) of the said section, the Court may also dispense with the examination of any person whose personal attendance has been dispensed with by him. This also indicates that in taking the plea an accused person can be examined in his absence through the Id.Advocate who is representing him u/s.205. In view of this position in law the impugned order is bad and is accordingly set aside. The Id.Magistrate is directed to examine the petitioner through his Id.Advocate u/s.251 Cr.P.C.. This application is accordingly disposed of.'
11. This court in RAMOJI RAO v. V.V.RAJAM, DEPUTY CONSERVATOR OF FOREST, NALGONDA, 1998 (1) ALD 126 (AP) held as follows:
'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.
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.
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.'
12. It can be seen from the aforesaid decisions that dispensing with the presence of the clause under 251 is left to the discretion of the Court and the discretion has to be exercised judicially after recording reasons, in fact the company was the accused in this case and is represented by the Chairman whose personal presence is not at all required. The Magistrate has not exercised his discretion in this case, I feel it necessary to formulate guidelines for the Magistrates to exercise their judicial discretion in cases where the presence of the accused is being dispensed with on the first date of appearance, as follows.
1) Insistence of accused shall be the Rule in every case and exemption shall be an exception.
2) If an accused is sick, he can be granted exemption at the initial stage under Section 251 of Cr.P.C.
3) If the offences are of severe nature involving moral turpitude, the presence of the accused shall be insisted.
4) Whenever there are natural calamities and the accused is unable to attend the Court due to the reasons beyond his control , he may be exempted from the appearance.
5) Whenever law exempts him from appearance in person in the Court , exemption shall be granted.
6) Whenever summons are issued dispensing with his personal presence by the Court and permitting him to take the plea by post, he can be exempted.
7) In a petty case, where he has his right to plead by Post, he may be granted exemption.
8) Where female are involved, they may be given exemption.
9) Where a person is residing out side the country, he may be given exemption
10) Where a person resides in a place where there are natural calamities , outside the jurisdiction of the Court, where natural calamities occur, he may be given exemption.
11) Where a person is infirm or sick or suffering with any contagious disease or bed ridden due to old age, may be given exemption.
12) Persons who are aged beyond 65 years, shall also be entitled to exemption provided he is hale and hygiene and capable of attending the Court.
13) Exemptions can be granted to persons who are entitled to invoke section 305 of the Cr.P.C.
14) Exemptions can also be granted to such of the persons to whom the Magistrate feels that the exemption has to be given, however, after recording elaborate reasons for the same.
15) The guidelines provide by the Supreme Court for exemption under Section 313 shall also be followed for dispensing personal presence of the accused under section 251 of Cr.P.C.
16) Such exemptions shall be granted only on an undertaking given stating that he will not claim prejudice to his rights vested under Section 205 of 251 of Cr.P.C.
13. Keeping in view, the above guidelines, now proceeding with the case, it is a case of dishonour of the cheque, filed against the company, which is represented by its Chairman. In such a case, the personal presence of the Chairman of the company can always be dispensed with, since, there is no personal liability, no action is sought against him personally.The Magistrateis not justified in refusing permission on the ground that his presence is absolutely necessary under section 251 of Cr.P.C., such permission can always be granted subject to not claiming his right under section 251 of Cr.P.c.
14. Hence, the order passed by the learned Magistrate is liable to be set aside . In this case , this Court has already permitted the accused to appear by counsel, he shall continue to do so upto the stage of Section 313 examination.Suffice to say, the order passed in C.C.257 of 2000 is liable to be set aside, and the same is set aside.
15. Before parting with the case, I state the guidelines adumbrated supra shall be followed strictly, till necessary rules are framed either under the Criminal Rules of Practice or Amendment has been made to the statute. I also state that there may be cases, which are not covered by the guidelines, in such cases, the Magistrate shall exercise his discretion by recording reasons. I further state that the guidelines framed by this Court do not come in any way of the Magistrate to grant exemption, in any case, where he felt to do so, subject to recording reasons.
16. The criminal petition is ordered accordingly, issuing direction to the Magistrate to follow the same.