K.K. Narendran, J.
1. The short point that arises for consideration in this Criminal' Revision is: On a day when a private complaint was posted for evidence-neither the complainant nor any witness was present. The complainant's petition for adjournment and to excuse absence was allowed. The accused's application to dispense with personal attendance for that day and permit his to appear by his pleader was rejected. Can it be said that the Magistrate exercised his discretion judicially and' in accordance with settled principles of law?
2. The respondent, a Nursery School Teacher filed a private complaint against the petitioner and Anr. under Section 494, Indian Penal Code before the Judicial Magistrate of the First Class. Cochin. On a warrant issued by the Magistrate the petitioner was arrested by the police. On 3-10- 1979 the petitioner appeared before the Magistrate and took bail. The petitioner got a job in Muscat and left Cochin on 2-12-1979. The case came up for trial on 12-2-1980. The complainant applied for adjournment. On behalf of the petitioner-accused an application was filed to dispense with- his personal attendance on 12-2-1980 and to permit him to appear by pleader on that day. The learned Magistrate allowed the application for adjournment but rejected the application filed on behalf of the petitioner. A non-bailable warrant was also issued for the arrest of the petitioner. Accordingly the petitioner was deported from Muscat on 29-2-1980. The petitioner has challenged the above order on the application to permit him to appear by pleader in this Criminal Revision.
3. Sections 273 and 317 of the Criminal P. C. 1973, for short the Code, read :
273. Evidence to be taken in presence of accused: Except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, jn the presence of his pleader.
317. Provision for inquiries and trial being held in the absence of accused in certain cases: 11 At any stage of an inquiry or trial under this Code, if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attenance of the accused before the Court is not necessary in the interests of justice, or that the accused persistently disturbs the proceedings in Court, the Judge or Magistrate may, if the accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in 'his absence, and may, at any sub-seguent stage of the proceedings, direct the personal attendance of such accused.
The impugned order reads :
Sufficient ground not made out to -excuse absence. Hence reiected.' The provisions to dispense with the personal attendance of the accused and to permit him to appear by his pleader are contained in Sections 205, 273 and 317 of the Code. Though Section 205 provides for dispensing with the personal appearance of the accused bv the Magistrate when he issues the sum-ttions it has been provided in Sub-section (2) therein that the Magistrate has the power to direct personal attendance of the accused if necessary at a later stage. The indication in Section 2T3 is that evidence can be taken in the pre- sence of the accused or in the presence of his pleader if his personal attendance was dispensed with. Under Section 317 the Magistrate has the power to allow the accused to appear by his pleader at any stage and continue the Inquiry or trial if he is satisfied that the personal attendance of the accused is not necessary in the interests of jus-tice. This section also empowers the Magistrate to direct the personal attendance of the accused at any subsequent stage, it goes without saying that the scheme of the provisions is that a Magistrate has to dispense with the personal appearance of the accused and allow him to appear by his pleader except when the personal attendance of the accused before court is necessary in the interests of justice. If for example a witness has to identify the accused then the Magistrate has to direct the accused to be present in court. However, fertile one's imagination may be, it cannot be said that the personal attendance of the accused in court is necessary on a day when the case is adjourned on the request of the complainant. At any rate in the interests of justice it cannot be insisted that he should attend the court on that day. In that case if the accused applies for permission to appear by his pleader, a Magistrate has no power under the Code to reject that application. Rejection of the application will only result in injustice. Courts are there to mete out justice and not to persecute the poor citizen who happens to be a party in a case. The salutary provisions permitting the accused to appear by his pleader are there in the Code to help the accused and not to harass him. To put in a mild language the impugned order happened to be passed because the learned Magistrate did not advert to the cardinal principle contained in the provisions in the Code for dispensing with the personal attendance of the accused and permitting him to appear by his pleader. The discretion the Magistrate has in these matters is a judicial discretion and this cannot be forgotten.
4. A contention was taken by the respondent's counsel that the impugned order being an interlocutory order it could not be challenged in revision because of the prohibition contained in Section 397(2) of the Code. This is a point on which the Supreme Court has already spoken. In Madhu Limaye v. State of Maharashtra : 1978CriLJ165 the Supreme Court said:
On a harmonious construction it should be held that the bar provided in Section 397(2) operates only in exercise of the revisional power of the High Court, meaning thereby, that the High Court will have no power of revision in relation to any interlocutory order. But in such a case, the inherent power will come into play there being no other provision in the Code for the redress of the grievance of the aggrieved party. In case the impugned order clearly brings out a situation which is an abuse of the process of the Court, or for the purpose of securing the ends of Justice interference of the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power of the High Court.
So it cannot be said that the High Court is powerless in this matter. But It has to be noted that the impugned order has worked itself out and the harm done cannot now be undone. So no purpose will be served by interfering with the order at this distance of time. This is also a reason for not Interfering with the impugned order. The Criminal Revision is hence dismissed.