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HIGH COURT OF PATNA
S. N. Jha, J.
S.C. Jain - Petitioner
Versus
The State of Bihar and another - Opposite party
Criminal Miscellaneous No. 4007 of 1981
Decided On : 2.8.1983
CRIMINAL PROCEDURE CODE - SECTION 205 - SUMMONS CASE - REPRESENTATION BY COUNSEL - ACCUSED CAN BE REPRESENTED BY COUNSEL THROUGHOUT THE TRIAL UNLESS PERSONAL ATTENDANCE IS REQUIRED BY THE MAGISTRATE.
Fact of the Case:
The petitioner, an executive officer of a company, was charged with offences under sections 296 and 298 of the Indian Penal Code for allegedly hurting the religious sentiments of Hindus by affixing the photograph of Hanuman on tins of vanaspati. The petitioner appeared through his counsel and filed an application under section 205 of the Code of Criminal Procedure (CrPC) seeking permission to be represented by counsel throughout the trial. The Magistrate allowed the application but later directed the petitioner to appear in person to explain the accusation. The petitioner filed another application seeking to explain the accusation through his counsel, but the Magistrate rejected it.
Finding of the Court:
The court held that the Magistrate was not justified in rejecting the petitioner's application to be represented by counsel. The court observed that section 205 of the CrPC allows the Magistrate to dispense with the personal attendance of the accused and permit him to appear by his pleader. The court further held that the Magistrate's discretion to direct the personal attendance of the accused under subsection (2) of section 205 should be exercised sparingly and only when necessary.
Issues: 1. Whether the Magistrate was justified in rejecting the petitioner's application to be represented by counsel throughout the trial. 2. Whether the Magistrate's discretion to direct the personal attendance of the accused under subsection (2) of section 205 of the CrPC should be exercised sparingly and only when necessary.
Ratio Decidendi: The court relied on the provisions of section 205 of the CrPC and the decisions in Roop Kumari Tiwary and others v. The Registrar of Companies, Bihar (1973 B.B.C.J. 535) and Shriniwas Bajpayee v. State of Bihar (1976 PLJR 521) to hold that the Magistrate was not justified in rejecting the petitioner's application to be represented by counsel. The court also held that the Magistrate's discretion to direct the personal attendance of the accused under subsection (2) of section 205 should be exercised sparingly and only when necessary.
Final Decision: The court allowed the petitioner's application and directed the Magistrate to proceed with the case in the light of the observations made in the judgment.
Surendra Narain Jha, J.
In this application under section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code), the petitioner has prayed for quashing the ORDER :dated 27.6.1981 passed by a Judicial Magistrate by which he has rejected. The application filed on his behalf under section 205 of the Code and has directed the petitioner to be present in court personally so that the particulars of the offence of which be is accused shall be stated to him.
2. The relevant facts for disposal of this application in short, is that a complaint was filed in the, Court of the Additional Chief Judicial Magistrate, Buxar, alleging offence under section 296 and 298 of the Indian Penal Code, hereinafter referred to as penal Code, on 5.8.1980. The Additional Chief Judicial Magistrate after an enquiry under section 202 of the Code took cognizance of offence under sections 296 and 298 of the Penal Code by his ORDER :dated 16.9.1980. By the same ORDER :, the learned Additional Chief Judicial Magistrate was pleased to ORDER :for issuance of summons to the petitioner for appearance on 30.9.1980 and transferred the case to the court of Md. Mustaquim judicial Magistrate, Buxar, for trial. The petitions appeared on 30.9.1980 through his counsel. According to the prosecution as disclosed in the complaint petition, the complaint petition, the complaint is a Hindu and is a devotee of Sri Bajrangbali (Hanumanji) and worships Sri Hanumanji's image at his residence. It is alleged in the complaint petition that the petitioner is a Marketing Executive of vanaspati product of Rohtas Industries Ltd. (in brief, the company) which, throughout the country, is branded as Hanuman vanaspati with photograph of Hanuman pasted on every container and is purchased throughout the country by persons of diverse castes and community. According to the complaint, every body snows disrespect to the photograph of Hanuman, knowingly or unknowingly somebody keeps the left over food in the container with the photograph pasted thereon somebody puts the photograph affixed tins on fire which deeply wounded the feelings of the complainant From a perusal of the complaint petition, it appears that the complainant claimed to have addressed a number of letters to the owner of the company stating therein that he had no objection to the inscribing of the name of Hanuman on tins but the photograph of Hanuman should not be affixed since it wounds the feelings of his devotees.
3. Further case of the complainant is that on 3.8.1980 while he was present at the Buxar Railway station, he came to know that the petitioner was waiting at platform no. 1 to go to Patna by the mail. He along with a few other person approached the petitioner and wanted to persuade him to request his Managing Director that the photograph of Hanuman ji should not be affixed on tins. The petitioner replied that the photograph of Hanuman is being affixed on the tins for more then two decades and he has not received any complaint. According to the complainant, the petitioner replied that the complainant should correspond with the Government instead of complaining to him it is further alleged that the complainant also pointed him at a nearby hotel to see how the photograph affixed on the tins were being put on fire. It is alleged that the petitioner also tore away the photograph of Hanuman and threw the same into the dustbin and observed that thousands of such photographs are burnt everyday and it is not possible for him to take care of the same every where. Such words of the petitioner deeply wounded the feelings of the complainant and, therefore, he filed the said complaint in the court of the Additional Chief Judicial Magistrate as mentioned above, a copy of which has been made Annexure-1 to this application.
4 Learned Magistrate took cognizance against the petitioner for offence under sections 296 and 298 of the Penal Code. As I have already stated above, the petitioner is the General Manager in
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