Important Point
Exemption from personal appearance of accused is discretion of Magistrate to grant and it can not be taken to mean that accused had an indefeasible right to insist upon court to permit him to be represented by counsel.

ORDER

C.Y. Somayajulu, J.—Since common questions of fact and law arise in these three petitions, they are being disposed of by this common order.

2. In all these three cases proceedings under Section 138, of Negotiable Instruments Act were initiated against the petitioners by the first respondent in the respective petitions, in which summons were issued to them. They, without being present on the day of first hearing, filed petitions seeking exemption from their personal attendance. Those petitions were allowed and the cases were adjourned. On that date of adjournment also petitioners were absent and they again filed petitions to condone their absence. They also filed petitions seeking permission to be represented through their Counsel in the respective cases. The learned Magistrate, holding that in view of Section 251, Cr.P.C. he has to furnish copies to the accused and should also examine them to find out if they plead guilty or not, after putting the substance of the accusations against them, dismissed those petitions. Those orders of dismissal are the subject matter of these petitions.

3. The contention of the learned Counsel for the petitioners is that in view of the ratio in Ramoji Rao v. V.V. Rajam1, and Dasari House of Publication Pvt. Ltd. v. M/s. Apple Credit Corporation Ltd.2, dated 31-7-2001 (A.P.), since presence of accused is not essential in a summons case, he can be represented through a Counsel, who can plead guilty or not guilty on behalf of the accused, and since the Supreme Court in Basavaraj R. Patil v. State of Karnataka3, held that the presence of the accused is not essential even at the stage of Section 313, Cr.P.C. examination, and his Counsel can represent and answer those questions on his behalf, the Court below was in error in dismissing the petitions. Heard the learned Counsel for first respondents (complainants) and the learned Additional Public Prosecutor.

4. In a summons case, as per Section 205, Cr.P.C., if the Magistrate finds reasons so to do, can dispense with the personal attendance of the accused, and permit him to appear by his pleader, and can, at any stage of the proceedings, at his discretion, direct the personal attendance of the accused and, if need be, enforce his attendance. In view of Section 205, Cr.P.C. and also the ratio in the decisions relied on by the learned Counsel for petitioners, power of the Magistrate to dispense with the personal attendance of an accused, and to grant permission to him to be represented through a Counsel, cannot be doubted. Whether the Magistrate has the power to do so or not is not the point for consideration in these petitions. The point is whether an accused has a vested or an indefeasible right to insist on the Court dispensing with his personal attendance and permit him to be represented by his Counsel. Sections 205 and 317, Cr.P.C. vest a discretion in the Magistrate to dispense with the personal attendance of the accused and permit him to be represented by his Counsel, because the word used in those sections is “may” and not “shall”. As per Section 273, Cr.P.C., evidence has to be recorded in the presence of the accused and if his personal attendance is dispensed with, in the presence of his Counsel. Section 251, Cr.P.C. lays down that in a summons case if the accused appears, or is brought before the Magistrate, the particulars of the offence of which he is accused of should be stated to him and should be asked if he pleads guilty or not guilty. Though there is nothing in Section 251, Cr.P.C. to show that such questions can be put to the Counsel for accused when his personal attendance is dispensed with, in view of the precedent law the Magistrate acquired a discretion to permit the accused being represented through a Counsel at the stage of Section 251, Cr.P.C. examination also. In Bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd.4, it is held that the Magistrate can, in appropriate cases, allow an accused to make even the firs