JUDGMENT
Subhro Kamal Mukherjee, J.
1. This is an application under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 (‘the said Code’ in short) against the judgment and order dated September 22, 2003 passed by the learned Sessions Judge, Andaman & Nicobar Islands in Criminal Revision Case No. 116 of 2003 reversing order dated June 2, 2003 passed by the learned Judicial Magistrate, Second Court at Port Blair in C.R. Case No. 110 of 2002.
2. The opposite party No. 1 lodged a complaint against the petitioner under Sections 501 and 502 of the Indian Penal Code, 1860 in the Court of the learned Judicial Magistrate, Second Court at Port Blair. The said complaint case has been registered as C.R. Case No. 110 of 2002 before the said Court.
3. The petitioner appeared in the said case on February 27, 2003 and engaged one learned advocate to defend his case. The learned Magistrate enlarged him on bail.
4. The petitioner on March 12, 2003 filed an application under Section 205 of the said Code praying for dispensing with his personal attendance and for permission to appear through his learned advocate.
5. It has been contended by the petitioner that the petitioner being one of the Finance and Accounts Officer of the Central Agricultural Research Institute, Port Blair, he has been busy with his official duties and as such it has been difficult for him to attend the Court on every date of hearing. The petitioner, also, undertook to attend before the learned Magistrate whenever the learned Magistrate required him to attend.
6. The learned Magistrate by order dated June 2, 2003 allowed the said application and personal appearance of the petitioner was dispensed with as prayed for by him.
7. The opposite party No. 1 challenged the said order dated June 2, 2003 passed by the learned Magistrate, Second Court, Port Blair in the Court of the learned Sessions Judge at Port Blair. The said revisional application was registered as Criminal Revision Case No. 16 of 2003.
8. The learned Sessions Judge by the judgment and order dated September 22, 2003 allowed the revisional application on contest, but without cost. The order dated June 2, 2003 passed in relation to the petition under Section 205 of the said Code was set aside. The learned Sessions Judge, inter alia, observed that the personal appearance of the accused could be dispensed with under Section 205 of the said Code in rare cases due to distance or any physical disability or other good reasons in the interest of justice.
9. Being aggrieved the petitioner has come up with this application under Section 401 read with Section 482 of the Code of Criminal Procedure.
10. Mr. Ananda Halder, learned advocate, appearing for the petitioner, submitted that the present application is in the nature of a second revision and is, therefore, not maintainable because of the bar provided under Sub-section (3) of Section 397 of the said Code.
11. There is an effective answer to such submissions of Mr. Halder in the observations of the Apex Court in the case of Krishnan and Anr. v. Krishnaveni and Anr. , . The said observations are quoted herein below:
“It is seen that exercise of the revisional power by the High Court under Section 397 read with Section 401 is to call for the records of any inferior Criminal Court and to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and to pass appropriate orders. The Court of Sessions and the Magistrates are inferior Criminal Courts to the High Court and Courts of Judicial Magistrate are inferior Criminal Courts to the Sessions Judge. Ordinarily, in the matter of exercise of power of revision by any High Court, Section 397 and Section 401 are required to be read together. Section 397 gives powers to the High Court to call for the records as also suo motu power under Section 401 to exercise the revisional power on the grounds mentioned therein, i.e., to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court, and to dispose of the revision in the manner indicated under Section 401 of the Code. The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that its subordinate Courts do not exceed the jurisdiction or abuse the power vested in them under the Code or to prevent abuse of the process of the inferior Criminal Courts or to prevent miscarriage of justice… In view of the above discussion, we hold that though the revision before the High Court under Sub-section (1) of Section 397 is prohibited by Sub-section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the Courts below”.
12. The aforesaid view has been reiterated by the Apex Court in another decision in T. Sudhakar Prasad v. Govt. of A.P. and Ors., reported in 2001(1) SCC 516. The observations of the Apex Court read as under :
“Incidentally we may refer to a three-Judge Bench decision of this Court in Krishnan v. Krishnaveni. Section 397 of the Code of Criminal Procedure, 1973 confers concurrent revisional jurisdiction on the High Court and Sessions Judge. The two fora are alternative to each other. Once an order of the subordinate Court is subjected to revision before the Sessions Judge, a ‘second revision’ before the High Court does not lie. Still, this Court held, the exercise of inherent power and power of superintendence vesting in the High Court under Sections 482 and 483 read with Section 401 of the Code was not excluded.”
13. On merits, also, I am satisfied that the learned Sessions Judge was wrong in interfering with the order passed by the learned Judicial Magistrate. Even, in the absence of the accused evidence can be taken, but his learned advocate must be present in Court when exemption from attending the Court is granted to the accused. It is not necessary to mark the attendance of the accused just for the sake of seeing him in the Court. If the progress of the trial can be achieved even in the absence of the accused, the learned Magistrate can certainly take into account the magnitude of the sufferings, which the accused person may have to bear with in order to make himself present in the Court on every date fixed for hearing of the case. The petitioner is an officer attached to the Central Agricultural Research Institute, Port Blair and the learned Magistrate, in my view, rightly dispensed with his personal attendance in Court and permitted him to defend his case through his learned advocate.
14. In my view, the learned Sessions Judge applied wrong legal tests in considering the revisional application and in setting aside the order passed by the learned Magistrate.
15. I, therefore, allow this application and set aside the order of the learned Sessions Judge passed in Criminal Revision Case No. 16 of 2003 and restore the order dated June 2, 2003 passed by the learned Magistrate in C. R. Case No. 110 of 2002. The personal attendance in Court of the petitioner is dispensed with and he is permitted to represent by his learned advocate subject to provisions of Sub-section (2) of Section 205 of the said Code.
There will be no order as to costs.