1. This was a Rule issued on the application of four persons Mt. Kamal Debi and three other ladies who applied for quashing a criminal proceeding against them i.e., G.R. case No. 324/1950 of the Magistrate's Court at Jorhat and objected to the order of the learned Magistrate refusing the ladies permission to appear in the case through pleaders.
2. A Division Bench of this Court passed an order on 16.5.1951 discharging the Rule but gave the petitioners a chance to renew their application for being exempted from personal appearance in Court. The relevant portion of the judgment runs as follows:
The last point taken was that the women accused at any rate might be exempted from personal appearance under the provisions of Section 205, Criminal P.C. The difficulty in acceding to this prayer is that the Magistrate has issued a warrant, and not a summons. In terms, therefore, Section 205, Criminal P.C. does not apply. The proper course for the women petitioners is to apply to the learned Magistrate to substitute a summons for a warrant and, if the Magistrate accedes to the prayer, then to pray for exemption from personal appearance. We express no opinion at this stage as to whether the Magistrate should or should not exempt them from personal appearance.
In the meantime the case was directed to proceed and the ladies were allowed to be exempted from personal appearance and were represented through their pleaders. It appears that the learned Magistrate passed an order allowing the ladies to appear through their lawyers and the order dated 31-8-51 runs as follows:
Read orders passed by the Hon'ble High Court. The female accused allowed to appear by their lawyer, Sjt. G. Barua (Advocate)....
It further appears from the report submitted by the trial Magistrate that the lady accused are still being represented by the lawyers.
3. The present Rule therefore, is confined only to the point whether the Magistrate once haying issued a warrant against the accused persons could dispense with their personal presence and allow them to appear through their lawyers. Under the present circumstances, it has no practical importance, the learned Magistrate having permitted the accused to appear through their pleaders in the meantime. It is undoubtedly a fact that in some earlier eases it was held that the learned Magistrate having once issued a warrant could not dispense with the presence of the accused under Section 203, Criminal P.C. but the trend of recent decisions is that the power of the learned Magistrate in dispensing with the presence of the accused at any stage of the trial if not confined to Section 205, Criminal P.C. It has been held by Rajamannar J, (the present Chief Justice of the Madras High Court) in In re Ummal Hesanath A.I.R. 1947 Mad. 433 that Section 353, Criminal P.C. impliedly gives the power to the Magistrate to dispense with the presence of an accused when he thinks it proper and Section 561-A, Criminal P.C. gives the High Court ample jurisdiction to pass such orders as may be thought necessary for meeting the ends of justice.
4. It has been held by the Allahabad High Court by a Division Bench in Aditya Prasad v. Jogendra Nath A.I.R. 1948 ALL, 393 that Section 205, Criminal P.C. does not deal with the jurisdiction of a Magistrate to dispense with the personal attendance of an accused person after a summons; or warrant has been served on the accused, The section only lays down a discretion to the Magistrate at the time of issuing summons as to whether the accused should appear in person or should be permitted to appeal through a pleader, On a reference to Section 204, Criminal P.C. the matter becomes very clear. It provides that in a certain class of cases summons has to be issued in the first instance to all the accused but if the case appears to be one in which according to the fourth column of the Second Schedule (Cr.P.C.) a warrant should issue in the first instance, the Magistrate may issue a warrant or if he thinks fit, a summons—for causing the accused to be-brought or to appear at a certain time before such Magistrate or some other Magistrate having jurisdiction.
It is therefore clear that when a warrant is issued, the implication is that the accused has 'to be brought' and when he is summoned the implication is that he is 'to appear'. If, therefore, an accused comes in response to a warrant and applies for his (or her) presence being dispensed with, the Magistrate has undoubtedly ample jurisdiction to dispense with his presence. In case the accused does not appear in Court in person but makes an application through a properly authorised agent for his presence being dispensed with, whether the Magistrate can grant him permission allowing him to appear through a pleader. There is nothing in the Code of Criminal Procedure which debars the Magistrate from granting such a permission but as I have referred to already, Section 353, Criminal P.C. impliedly gives the Courts such power to dispense with the personal presence-of the accused. We have to consider whether Section 205, Criminal P.C., is a handicap to the granting of such permission. In my opinion, it is not. Section 203 only lays down a certain procedure but it does not exhaust the power of the Court in the matter of granting permission in deserving cases dispensing with the presence of the accused and I quite agree with the view held by the Allahabad High Court in Aditya Prasad v. Jogendra Nath A.I.R. 1948 ALL 393, that there is no reason why this Section should be read as debarring a Court from considering the request of an accused to appear by a pleader merely because a warrant had been issued in the first instance.
5. In the present ease the Magistrate having already permitted the petitioners to appear through a pleader for the interim period in accordance with the direction of the High Court, there is no difficulty in allowing the petitioners to continue to appear through their pleader subject to Section 205(2), Criminal P.C. which implies that the Magistrate in his discretion at any stage of the proceeding shall be entitled to direct the personal attendance of the accused and if necessary enforce such attendance in a manner as provided by law.
6. The Rule is, therefore, made absolute.
Ram Labhaya, Ag.C.J.
7. I agree.
I may add that in the previous order of this Court, dated 16.5.1951, it was observed that in view of the fact that warrants had been issued for the attendance of the petitioners, they should apply to the Trial Magistrate for substitution of summonses for warrants and then repeat their prayer for exemption from personal appearance. The course suggested was considered legal, as the warrants, though issued, had not been served. The advantage of the adoption of this course was that it would have removed the legal impediment in the way of the learned Magistrate and thus would have enabled him to decide, on a consideration of the relevant facts, whether to exempt the petitioners from personal appearance, or not.
8. The learned Magistrate could not reconcile himself to possible substitution, merely to make it possible for the accused to be exempted from personal appearance. He has not taken into account the fact that warrants had not been served on the petitioners after the revival of the complaint. It was not necessary to issue fresh warrants for their attendance as they had appeared by pleader and were merely asking to be exempted from personal appearance. In these circumstances, the course suggested could have been followed without impropriety and with abundant justification. In Jagdish Narain v. Emperor 1940 AL. L.J. 104, a warrant had been issued in the first instance. It was never served and was cancelled. It was held that the position was as though the warrant had never been issued, and the Magistrate could dispense with the personal attendance of the accused. The situation in the present ease would have been the same if 'the unserved warrants had been cancelled.
In these circumstances, the question of the powers of the Courts, inferior or superior, to permit the accused to appear by a pleader, was not -examined in all its bearings at that stage.
9. I am inclined to agree with the view of the learned Judges of the Allahabad High Court ex-pressed in Aditya Prasad v. Jogendra Nath A.I.R. 1948 ALL 393 that Section 205 applies at a stage when the Magistrate is considering whether summons or warrant should issue. He may at that stage dispense with the personal appearance of the accused if he decides to issue summons. The section need not be construed as preventing the trial Magistrate from exempting the accused from personal attendance at any subsequent stage of the hearing or trial. I also agree, as held in this case and also in In re M.L. Verghese A.I.R. 1947 Mad. 352 that Section 353, Criminal P.C. by necessary implication, confers powers on the Presiding Officer-whether he be a Magistrate or a Sessions Judge or a Judge of the High Court-to dispense with the personal attendance of an accused person. In this view of the matter, the learned Magistrate could dispense with the personal attendance of the petitioners even though their application for exemption from personal appearance had been re-fused by his predecessor-in-office.
10. The petitioners no doubt are not Pardanashin ladies in the strict sense of the term, but it is equally undoubted that they are not accustomed generally to appear in public. They also belong to a section of society which looks upon the appearance of the females in Courts with extreme disfavour. The privilege of Purdah, in these circumstances, could have been extended to the petitioners with ample justification.
11. Even if the authority of the trial Magistrate to exempt the petitioners from personal attendance were a matter of some doubt, this Court can grant the relief prayed for in the exercise of its inherent jurisdiction under Section 561-A, In a suitable case and for securing the ends of justice or to prevent an abuse of the process of the Court, it may pass any order in the exercise of its inherent powers, which are not limited or affected by anything contained in the Code. This inherent power has been exercised to dispense with the personal attendance of the accused in In re Ummal Hesanath A.I.R. 1947 Mad. 433. In Mt. Saji v. Mt. Bhimi A.I.R. 1930 Nag. 61, its exercise in such cases was found to be permissible. The circumstances of this case attract the exercise of the inherent jurisdiction of this Court, and I, therefore, entirely agree with my learned brother in the order he has proposed.