Sharma, J. - (1.) THIS is a reference by the learned Sessions Judge, Jaipur City, recommending that the personal appearance of Thakur Narendra Singh accused be dispensed with under sec. 205 of the Code of Criminal Procedure. A complaint has been filed against him under sec. 341 I. P. C. in the Court of Third Assistant City Magistrate, Jaipur. The learned Magistrate issued a summons under sec. 204 Cr. P. C. for the accused to appear in person or by pleader. On the date fixed in the summons, an application was made on behalf of the accused under sec. 205 Cr. P. C. to dispense with his personal appearance. The learned Magistrate, after hearing both the parties, ordered that the accused should appear in person. Against this order, the accused went in revision to the Court of Session, Jaipur City, and the learned Sessions Judge has made the above reference.
(2.) I have heard the learned counsel for both the parties. The counsel for the complainant opposes the reference on the ground that there were special circumstances entitling the accused to the benefit of sec. 205 Cr. P. C. It was argued that the only grounds which have been given in the order of reference were that the accused was 55 to 60 years old, that even according to the statement of the complainant the accused was not present on the scene of occurrence, that it could not be said that the complainant's case was going to be prejudiced if the discretion vested in the Court under sec. 205 Cr. P. C. was exercised in favour of the accused, and that the offence complained of was a very trivial one. It was argued that none of these grounds was sufficient for giving the accused a concession under sec. 205 Cr. P. C. On behalf of the accused it was argued that the accused was of sufficiently advanced age, and that the Magistrate himself, in the first instance, called upon the accused to appear either personally or through a pleader. It was further argued that the offence was not only a trivial one, but the complainant's demand for the personal attendance of the accused was mala fide. It was consequently argued that in the circumstances of the case, the accused should not have been called upon to appear personally. I have considered the arguments of both the learned counsel. Sec. 205 Cr. P. C. gives a discretion to the Magistrate to dispense with the personal attendance of the accused, and permit him to appear by his pleader in certain circumstances. The ordinary rule in criminal cases is that the accused should personally appear before the court, and sec. 205 has left it to the discretion of the Magistrate to give a concession to the accused not to appear personally but through his pleader. The accused, who wants the benefit of sec. 205 Cr. P. C. must make out sufficient grounds for exemption from personal appearance. In this case the learned Sessions Judge says that the case is a trivial one. It would be very dangerous to hold, as a general rule, that in every case, which is a very trivial one, the personal attendance of the accused should be dispensed with. The other ground which is given is that he is about 55 or 60 years old. It cannot be said that a man is physically unable to attend the court simply because he is 55 or 60 years old. If the accused was physically unable to attend the court or was suffering from any ailment, it was for him to make out that he had such physical disability or ailment. In the present application no such grounds were taken. The learned Sessions Judge has observed that from the complainant's statement it appears that the accused was not present at the time of the occurrence. If the mere fact of absence from the place of occurrence is to furnish a ground for exemption from personal appearance, many conspirators who work behind the scene can very well claim exemption from personal appearance on that ground. One of the grounds given by the learned Sessions Judge is that the accused is of a very high social position, and was exempt from attendance in courts when Jaipur State was in existence. It may be that there might be some laws or rules in Jaipur State according to which persons of the status of the accused might have been exempted from appearance in; courts, but no such laws or rules are any longer in force now. In the free India of to-day, the Constitution has provided that every citizen will be equal before the law and shall have equal protection of the laws within the territories of India. The mere ground of social position, therefore, is not enough to mete out a differential treatment to any person. I am afraid that it cannot be said that the discretion exercised by the learned Magistrate was perversely, capriciously or arbitrarily exercised. It was argued that the discretion was perversely exercised because the learned Magistrate in the summons, which he issued, gave the accused the choice either to appear personally or by pleader, but afterwards he took away this concession for no sufficient grounds. I have had a look at the summons issued to the accused. It is in printed form, and the words 'asaltan ya vakaltari are printed in that summons. It cannot be said that the learned Magistrate necessarily applied his mind at the time of issuing summons to the question whether in the circumstances of the case it was proper to give the accused the option to appear by pleader. The order which has been made by the Magistrate now was made after hearing both the parties, and considering their arguments. I do not think there is any reason to interfere with that discretionary order. The reference is rejected. .;