ORDER
S. Ahmed, J.
1. This application is directed against order dt. 31-5-1986 passed by the Ld. Judicial Magistrate, Howrah in complaint case No. 230C/85, By the impugned order the Ld. Magistrate rejected the prayer of the petitioner to be examined Under Section 205 of the Cr. P.C. It appears from the impugned order that the petitioner filed a petition praying for allowing him to be represented by his lawyer and for permitting the Id. Advocate representing him to take plea of not guilty. On perusal of the record of Ld. Magistrate it is found that this petitioner was directed to be present but he did not turn up and he held that in the absence of the accd. the Ld. lawyer cannot be permitted to take the plea of not guilty. In his view the presence of all the accd. is necessary for examination Under Section 251 Cr.P.C. Accordingly, he rejected the prayer.
2. Mr. Roy appearing for the petitioner has challenged the finding of the ld. Magistrate to the effect that it was necessary for the accd. persons to remain present while being examined Under Section 251 Cr. P.C. It may be noted in this connection that the ld. Magistrate did mot indicate any other reason why the presence of the petitioner was necessary at the time of examination Under Section 251 Cr. P.C. Section 251 appears in Chapter XX of the Code which provides for trial of summons cases by Magistrate. It lays down when in a summons case the accused appears or is brought before the Magistrate the particulars of the offence shall be stated to the accused and he shall be asked whether he pleads guilty or has any defence to make but it shall not be necessary to frame a formal charge. This provision has the object of simplifying the provisions for framing of charges. The question in the instant case arises whether a person granted exemption Under Section 205 of the Cr. P.C. has to appear before the Ld. Magistrate while being examined Under Section 251, Section 205 Cr. P.C. being a general provision, from the scope of which, Section 251 has not been excepted. Accordingly when an accd. seeks to plead guilty or not guilty, his presence is not a must if he has already been exempted Under Section 205 Cr. P.C. In support of his contention Mr, Roy has also relied on a decision of this Court reported in 1976 Cri LJ 76. The court held that the scheme of the Code clearly envisages that in the interest of the accd. and in the interest of an expeditious trial and to eliminate hardship and harassment of the accd. The courts have been empowered to exempt accd persons from their personal attendance in court and to appear by a Pleader in the Courts of the trial Under Section 205, Cr. P.C., provided that the Ld. Magistrate who issues the summons should exempt the accd. from such personal attendance and permit him to appear by a Pleader. Such appearance of the Pleader constitutes appearance of the accd. Section 353 of the Code also provides that evidence can be taken in the presence of a Pleader when the attendance of the accd. has been dispensed with. Judgment can also be delivered by the Court in the absence of the accd. where the sentence is one of fine only. On consideration of all these materials that the absolute proposition of law of a bar in limine that the accd. himself shall take the plea is not correct. He has also referred to a decision of Delhi High Court reported in 1985 Cri LJ 467. The Court held that where in a summons case personal appearance of the accd. was dispensed with in accordance with Section 205 of the Code pleader can represent the accd. subsequently even as regards the plea to the substance of accusation Under Section 251. It also noted that prescribed form of summons in the second schedule of the Code is also drafted keeping in view the provisions of Section 251.
3. Mr. Safiulla appearing for the State drew my attention to Sub-section (2) of Section 205 which lays down that the Magistrate enquiring into or trying the case may in his discretion at any stage of the proceeding direct the personal attendance in the manner hereinbefore provided. That in the instant case the Magistrate used his discretion and asked the petitioner to appear before him for being examined Under Section 251. There is nothing wrong in it. This is not an abstract proposition of law but in the facts of the case when the ld. Magistrate has directed the petitioner who was exempted Under Section 205, Cr. P.C. from appearing before him, to appear he has to comply with such a direction by the Id. Magistrate. I have already noted that ld. Magistrate directed him to remain present only on the ground that he thought that the presence of the accd. was an absolute necessity while being examined Under Section 251 Cr. P.C. The discretion of the Id. Magistrate must be exercised judicially. When he has exempted one accd. person from appearing before him during trial he must indicate good reasons why such exemption was being withheld. In the instant case that has not been done. In appropriate cases power under Sub-section (2) of Section 205 can be profitably utilised but in the facts of this case the discretion used by the ld. Magistrate was founded on a wrong notice of law. In this connection we may also refer to the provisions of Section 313 Cr. P.C. As per proviso to Clause (1)(b) of the said section, the Court may also dispense with the examination of any person whose personal attendance has been dispensed with by him. This also indicates that in taking the plea an accd. person can be examined in his absence through the ld. Advocate who is representing him Under Section 205. In view of this position in law the impugned order is bad and is accordingly set aside. The ld. Magistrate is directed to examine the petitioner through his ld. Advocate Under Section 251 Cr. P.C. This application is accordingly disposed of.