Arun Singh Vs. the State of Rajasthan - Court Judgment

Excerpt:
rajasthan shops and commercial establishment act - sections 12/33 and 4 and rajasthan shops and commercial establishment rules--rule 22(10) and criminal procedure code--section 206--presence through counsel--presence of accused not necessary for identification--no apprehension of absconding--no likely prejudice to complainant--held, accused should have been allowed to appear through counsel.;when the presence of the accused in the court is not necessary for being identified and there is no apprehension of the accused being absconding and the absence of the accused from the court is not likely to seriously prejudice the interest of the complainant, then in that case the learned magistrate, looking to the petty nature of the offence, should have allowed the petitioner to appear through advocate instead of issuing the bailable warrant and seeking his presence in the court on each and every date of hearing.;order accordingly. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. b.r. arora, j.1. this miscellaneous petition is directed against the order dated august 17, 1990, passed by the additional chief judicial magistrate, bikaner, directing the petitioner to appear in person if he wants to contest the case.2. labour inspector, shops and commercial establishment act, filed a complaint against the petitioner in the court of the additional chief judicial magistrate, bikaner, for offence under section 12/33 and section 4 of the rajasthan shops and commercial establishment act and under rules 22(10) and 25 of the rajasthan shops and commercial establishment rules. the learned additional chief judicial magistrate, by his order dated april 6, 1989, issued special summons to the accused as the offences were petty in nature and directed that the accused may appear in person or through his advocate in the court if he wants to contest the case. the counsel for the petitioner appeared on august 17, 1990, in the court after the service of the special summon on the petitioner but did not plead guilty and wanted to contest the case. the learned additional chief judicial magistrate, therefore, by his order dated august 17, 1990, directed the petitioner to appear before him if he does not want to confess the guilt. he, therefore, issued a bailable warrant in the sum of rs. 500/-. it is against this order that the present petition has been filed.3. heard learned counsel for the petitioner and the learned public prosecutor.4. section 206 cr.p.c. makes a provision for issuance of the special summon in the cases of petty offences. section 206 cr.p.c. provides that if in the opinion of the magistrate, taking cognizance of a petty offence, the case may be summarily disposed-of under section 206 cr.p.c, then the magistrate shall excape, where he is, for the reasons to be recorded in writing, of a contrary opinion, issue summons to the accused requiring him either to appear in person or by pleader before the magistrate on a specified date and if he desires to plead guilty to the charge without appearing before the magistrate, to transmit before the specified date, by post or messenger to the magistrate, the said plea in writing and the amount of the fine specified in the summon or if he desires not to plead the guilt then to either appear in person or through a pleader to plead not guilty to the charge on his behalf and to pay the fine through such pleader.5. the learned magistrate issued the special summons under section 206 cr.p.c. treating the offence as a petty offence. but when the accused appeared through his counsel and did not plead guilty then the learned magistrate issued bailable warrant and directed the accused to appear in person. when the presence of the accused in the court is not necessary for being identified and there is no apprehension of the accused being absconding and the absence of the accused from the court is not likely to seriously prejudice the interest of the complainant, then in that case the learned magistrate, looking to the petty nature of the offence, should have allowed the petitioner to appear through advocate instead of issuing the bailable warrant and seeking his presence in the court on each and every date of hearing. the order passed by the learned lower court, issuing the bailable warrant for seeking the presence of the petitioner during the trial is set-aside and the petitioner is allowed to appear during the trial through his pleader.6. the miscellaneous petition, filed by the petitioner, is disposed-of with the above observations.