PROVA DEBI Vs. FERNANDES
LAWS(CAL)-1961-10-4
HIGH COURT OF CALCUTTA
Decided on October 04,1961

PROVA DEBI Appellant
VERSUS
FERNANDES Respondents

JUDGEMENT

- (1.) CRIMINAL Revision Case No. 525 of 1960 referred to this Full Bench arises from a case pending in the court of Sri R. N. Banerjee, Magistrate, 1st class, Asansol, against the petitioner Prova Debi and two others. In that case on the complaint of the opposite party Mrs. Fernandez, three accused including the petitioner Prova Debi were summoned, Prova Debi being summoned under, section 323 of the Indian Penal Code. On her prayer she was permitted to be represented by a pleader under section 205 (1) of the Criminal Procedure Code. The case was thereafter transferred to Sri R. N. Banerjee, Magistrate, 1st Class, for disposal. When the stage arrived for examination of the accused under section 342 of the Criminal Procedure Code, the learned Magistrate directed the petitioner Prova Debi to appear in person, observing that in view of the ruling of the Calcutta High Court, he could not permit the petitioner to be examined through her pleader and that she must appear personally in Court for examination under section 342 of the Criminal Procedure Code, Against that order this revisional application was filed. When the matter came before a Division Bench, that Bench observed that apparently the learned Magistrate was thinking of the latest decision of the Calcutta High Court on the point viz. , Dudh Nath Shaw v. State (1) (A. I. R. 1958 Cal. 431) which followed the decision of another Bench of this Court, Adeluddin v. K. E. (2) (49 C. W. N. 537); but there was a contrary decision by another Bench of this Court viz. , Champa Debi v. Babulal Goenka (3) (54 C. W. N. 207) where the view was taken that there is nothing in section 342 of the Code which requires the Court to compel the personal attendance of the accused for examination after the close of the prosecution case, The Division Bench also referred to a decision of the Bombay High Court and a decision of the Allahabad High Court taking the same view as was taken in champa Devi v. Babulal Goenka (3) (54 C. W. N. 207), and referred the case to the Full Bench for decision with the following questions: 1. Where a Magistrate has permitted an accused to be represented by a pleader under section 205 (1) or 540a (1), is he bound to compel the appearance of the accused for examination under sec. 342 of the Code or he may exercise his discretion in the matter ?
(2.) WERE the cases Dudhnath Shaw v. State (1) (A. I. R. 1958 Cal. 431) and Adeluddin v. K. E. (2) (49 C. W. N. 537) rightly decided ? 2. I propose first to deal with the point with reference to the relevant provisions of the Code. When a Magistrate is satisfied that there is sufficient ground for proceeding he may in appropriate cases issue a summons for the attendance of the accused, as laid down in section 204 of the Code. The prescribed form for a summons is form No. 1 of Schedule 5 of the Code, which runs as follows: "whereas your attendance is necessary to answer to a charge of (state clearly the offence charged), you are hereby required to appear in person (or by pleader, as the case may be) before the (Magistrate ). . . . . . of. . . . . . on the. . . . . . day of. . . . . . Herein fail not. "
(3.) THE form shows that when issuing summons the Magistrate may require the attendance of the accused in person or in the alternative by pleader. This is expressly provided by section 205 of the Code which runs as follows: " (1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused, and permit him to appear by his pleader. (2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner hereinbefore provided. ";


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