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Calcutta High Court says magistrate cannot mechanically impose terms to order dispensing personal appearance of accused

A single-judge bench of Justice Kausik Chanda passed this order while hearing a petition filed by Sanjay Jain

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The Calcutta High Court has recently held that under Section 205 of the Code of Criminal Procedure, a magistrate cannot mechanically impose conditions to an order dispensing with the personal appearance of an accused.

A single-judge bench of Justice Kausik Chanda passed this order while hearing a petition filed by Sanjay Jain. The petitioner in the application has challenged an order dated August 29, 2019, passed by the Judge, 1st Bench, City Sessions Court at Kolkata whereby the judge affirmed an order dated February 15, 2017, passed by the Metropolitan Magistrate, 13th Court at Kolkata in a case under Sections 138/141 of the Negotiable Instruments Act, 1881.

The petitioner filed an application under Section 205 of the Code of Criminal Procedure, 1973 before the Magistrate for dispensing with his personal appearance in the case.

The petitioner challenged the order of the Magistrate before the Sessions Judge. The Sessions Judge found that the Magistrate committed no mistake in passing the said order dated February 15, 2017, and affirmed the order of the Magistrate.

Ayan Bhattacharjee, the advocate appearing for the petitioner, submitted that the Magistrate as well as the Sessions Judge in the Court below did not appreciate the scope of Section 205 of the Code of Criminal Procedure, 1973 and imposed the conditions mechanically while allowing the said application.

A request was made to Saswata Gopal Mukherjee, Public Prosecutor to assist the Court. Mukherjee submitted that in view of the law laid down in Puneet Dalmia (supra), the personal appearance of an accused can be dispensed with, but such exercise should not be done mechanically, and it will depend on the facts and circumstances of each case.

The Court held, “From the order of the Magistrate, it does not appear that the Magistrate assigned any reason as to why the appearance of the Petitioner was necessary at the time of examination under Sections 313 and 251 of the Code of Criminal Procedure, 1973. Magistrate merely mentioned that there are certain facts which can only be explained by the accused persons, and those facts are only within their knowledge, and as such, their presence may be required.

“In my view, the order of the Magistrate cannot be said to be a speaking order, so as to justify the presence of the Petitioner at the time of examination under Section 251 or under Section 313 of the Code of Criminal Procedure, 1973.

The view of the Court regarding conditions attached to an order dispensing the personal appearance of an accused appears to be consistent,” the Court said.

Also Read: Andhra Pradesh HC says a man’s girlfriend can’t be charged under Section 498A IPC

The Court ordered, “The revisional application is disposed of with a direction that the Magistrate will be at liberty to record the plea of the petitioner through his advocate and his examination under Section 313 of the Code of Criminal Procedure, 1973, may also be conducted in terms of Section 313(5) of the Code.

In the event, the advocate for the petitioner remains absent or does not participate in the proceedings, the Magistrate will be at liberty to forthwith recall the dispensation granted under Section 205 of the Code of Criminal Procedure, 1973.

The petitioner in that event shall be personally present during the trial of the case. This revisional application is accordingly disposed of.”

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