Karunesh Singh Pawar,J. - (1.) Heard learned counsel for the petitioner and learned A.G.A. for the State.
(2.) It is contended on behalf of the petitioner that the petitioner is 70% disabled and he is not able to walk. It is next contended that the petitioner is residing at Unnao, whereas proceedings of Section 125 Cr.P.C. are going on before the Principal Judge/Family Court, Faizabad, which is 239 kilometers away from his residence. On account of his disability and the far distance from the place of trial to the place of his residence, he gave an application for exempting his personal appearance before the learned court below which has been rejected by the impugned order.
(3.) It has been contended on behalf of the petitioner that the petitioner is ready to appear for mediation, however, for the other purposes, such as for recording evidence etc., he may be permitted to appear through counsel. Learned counsel for the petitioner has placed reliance on the judgment of Hon'ble Supreme Court reported in AIR 2001 Supreme Court 3625 "M/s Bhaskar Industries Ltd. v. M/s Bhiwani Denim and Apparels Ltd and other". The relevant paragraph No. 17 and 19 are reproduced as under:- "17. Thus, in appropriate cases the magistrate can allow an accused to make even the first appearance through a counsel. The magistrate is empowered to record the plea of the accused even when his counsel makes such plea on behalf of the accused in a case where the personal appearance of the accused is dispensed with. Section 317 of the Code has to be viewed in the above perspective as it empowers the court to dispense with the personal attendance of the accused (provided he is represented by a counsel in that case) even for proceeding with the further steps in the case. However, one precaution which the court should take in such a situation is that the said benefit need be granted only to an accused who gives an undertaking to the satisfaction of the court that he would not dispute his identity as the particular accused in the case, and that a counsel on his behalf would be present in court and that he has no objection in taking evidence in his absence. This precaution is necessary for the further progress of the proceedings including examination of the witnesses. 19. The position, therefore, bogs down to this: It is within the powers of a magistrate and in his judicial discretion to dispense with the personal appearance of an accused either throughout or at any particular stage of such proceedings in a summons case, if the magistrate finds that insistence of his personal presence would itself inflict enormous suffering or tribulations to him, and the comparative advantage would be less. Such discretion need be exercised only in rare instances where due to the far distance at which the accused resides or carries on business or on account of any physical or other good reasons the magistrate feels that dispensing with the personal attendance of the accused would only be in the interests of justice. However, the magistrate who grants such benefit to the accused must take the precautions enumerated above, as a matter of course. We may reiterate that when an accused makes an application to a magistrate through his duly authorised counsel praying for affording the benefit of his personal presence being dispensed with the magistrate can consider all aspects and pass appropriate orders thereon before proceeding further." ;