M. Wahajuddrn, J. - (1.) THE Magistrate rejected the prayer for bail, as the applicant did not put appearance and application was moved through a counsel claiming appearance for the accused. Ordinarily the forum is under Section' 439, CrPC and application should be made in such cases to the Sessions Judge or the High Court.
(2.) IT is submitted that the application will not be entertained under Section 439, CrPC as personal appearance! would be requisite, hence the applicant has come here. Reliance has been placed upon two cases ; Muafaruddin v. State of Hyderabad, 1953 CrLJ 1320 in which it was observed that appearance through a pleader may be deemed to be a personal appearance. Similar view has been taken in the other case of Hyderabad Sunder Singh v. State, 1954 CrLJ 458. The matter arose for consideration before the other High Court also. In 47 Cuttafc Law Times page 233 quoted in AIR Manual commentary it was held that the expression 'appear' does not mean appearance through pleader. In the case reported in 1979 CrLJ 345 of Kashmir High Court it was held that actually when a person appears before the court he, in fact, surrenders before the court. Surrender cannot be by proxi. The pleader may represent any accused person and during hearing or trial the absence can be condoned on one or many dates, but a pleader cannot be deemed to have surrendered for the accused. In fact, if Sections 437 and 439 CrPC are read together it would appear that the insistence of Legislature is on actual surrender whether by appearance or otherwise. That being the position, this application under Section 482, CrPC is summarily rejected and there is nothing wrong in the order of the Mag istrate.;