Hon'ble SHARMA, J. - (1.) IDENTICAL question in respect of exemption of personal attendance of the accused petitioner arises in the instant petitions therefore both these petitions were heard analogously and are proposed to be decided by a common order.
(2.) A perusal of material on record ex facie shows that the petitioner is an old man of 85 years of age having heart ailment. He has been made accused in two criminal cases bearing Nos. 140/96 and 653/96 in the capacity of occupier of the CIMMCO BIRLA LTD. Learned trial court took cognizance under Sections 21, 45, 49, 62 and 113 of the Factories Act and Rules 65 MM. 68(2)(3), 85 and 110 of the Rajasthan Factories Rules, 1951 and Rule 3(6) and 31 of the Rajasthan Welfare Offi- cers (Recruitment of Conditions of Services) Rules, 1959 and the petitioner and co-accused Mardan Singh Factory Manager of CIMMCO BIRLA LTD. Co-accused Mardan Singh put in appearance before the trial court. Bailable warrants were issued against the petitioner by the trial court in Case No. 140/96. Two applications were filed by the petitioner on Sept. 27, 1996 but the trial court issued warrant of arrest. Thereafter applications for cancelling the warrant of arrest were filed but they were rejected. However, learned Sessions Judge Bharatpur vide order dated October 3, 1996 converted the non-bailable warrants into bailable warrants. A writ petition was filed by the petitioner before this court and after dismissal of writ petition, the learned trial court again issued bailable warrants against the petitioner on Feb. 5, 1998, the petitioner submitted exemption applications before the trial court which were dismissed vide orders dated March 3, 1998. The said orders have been assailed in these petitions. I have reflected over the rival submissions and carefully scanned the case law cited before us. It is evident that in case No. 140/96 bailable warrants have been issued, whereas in case No. 653/96 summons has been issued against the accused petitioner. An application was submitted by the petitioner for cancelling the bailable warrants and it was prayed that the petitioner may be permitted to appear through his counsel, but the learned trial court declined the prayer. In case No. 140/96 the petitioner prayed in his application under Section 70 (2) Cr. P. C. moved on October 1, 1996 as under: ...[Vernacualr Text Ommited]... (It is therefore prayed that warrant of arrest issued vide order dated 27. 9. 96 be cancelled and the counsel for the accused be directed to produce the accused on 23. 10. 96) This application bears the signatures of the learned counsel for the accused. A look at the aforesaid prayer goes to show that the accused was ready to appear before the learned court. The learned Sessions Judge Bharatpur vide order dated October 3, 1996 allowed the application of the petitioner moved under Section 438 (3) Cr. P. C. and directed as under: ...[Vernacular Text Ommited]... (I, in the interest of justice direct that the order of issuing warrant of arrest against the accused N. Balasundram issued by the court below be cancelled and the accused instead is summoned through bailable warrants in the sum of Rs. 1,000/ -. the warrant of arrest already issued shall be treated as bailable warrant. Concerning police station be informed accordingly ). The aforesaid order of learned Sessions Judge Bharatpur is in force as yet. Though I am of the considered opinion that the court should be generous and liberal in exempting the accused from personal appearance in trivial criminal cases, but looking to the aforesaid directions issued by the learned Sessions Judge Bharatpur, the provisions of Section 205 Cr. P. C. cannot be invoked in case No. 140/96. The cases cited by Mr. D. G. Chaturvedi learned counsel for the petitioner are distinguishable. In Mst. Dhuli Bai vs. Bhawani Bai (1) bailable warrants were issued in the first instance in a summons case. It was observed by Ranawat J, that- "the Magistrate ordered issue of bailable warrants in the first instance but his order appears to be not warranted by the circumstances of the case. An accused person should not be deprived of the benefit of Section 205 Cr. P. C. because the Magistrate acted with an error, and ordered issue of bailable warrants in place of summons against the accused."
(3.) IN Prova Debi vs. Mrs. Fernandes (2) Full Bench of Calcutta High Court had occasion to consider a case when warrant was issued initially but the orders for issue of the warrant was recalled on the very next day and no warrant was issued. Full Bench placed reliance on Jagdish vs. Emperor (3) and held that petitioner was legally permitted to be represented by a pleader under Sec. 205 (1) Cr. P. C. IN Jagdish vs. Emperor it was observed that where a warrant was issued but cancelled and then a summons issued,the Magistrate could exercise the power under Section 205 (1) Cr. P. C. In the case on hand the order of issuance of bailable warrants against the petitioner is still in force. Thus provisions contained in Section 205 Cr. P. C. are not applicable in case No. 140/96 and the learned trial court rightly rejected the application of the petitioner. But the application moved in case No. 653/96 under Section 205 Cr. P. C. ought to have been allowed. Resultantly, S. B. Cr. Misc. Petition No. 434/98 stands allowed, the impugned order of the learned Magistrate in case No. 653/96 is set aside and the learned Magistrate is directed to dispense with the personal attendance of the petitioner, till such time, as his appearance is considered by him necessary in the interest of justice. ;