Section 205 CrPC- Magistrate Cannot Mechanically Impose Conditions To An Order Dispensing Personal Appearance of Accused : Calcutta High Court

The Calcutta High Court has held that magistrate cannot mechanically impose conditions to an order dispensing the personal appearance of accused under Section 205 Code of Criminal Procedure.

It observed that the Magistrate, while passing the impugned order, had merely mentioned that there are certain facts which can only be explained by the accused persons, and those facts are only within their knowledge, and as such, their presence may be required. However, the same appears mechanical when the accused person's plea may be recorded through his Advocate and his examination under Section 313 of CrPC may also be conducted in terms of Section 313(5) of the Code which provides that the court may permit the accused to file written statement as sufficient compliance of the section.

In the instant case, the petitioner had filed an application before the Metropolitan Magistrate under Section 205 of CrPC for dispensing with his personal appearance during proceedings under Sections 138 and 141 of the Negotiable Instruments Act, 1881. The Magistrate vide order dated February 15, 2017 had allowed the application but ordered the petitioner to be personally present for examination u/s 251 and 313 of CrPC. This was subsequently affirmed by the Sessions Court.

Aggrieved by the aforementioned order, the present plea had been filed in the High Court. The counsel for the petitioner argued that both the Magistrate and the Sessions Court did not appreciate the ambit of Section 205 of the CrPC and accordingly imposed conditions mechanically while advocating for personal appearance.

While upholding the contentions of the petitioner, Justice Kausik Chanda observed, 

"From the order of the learned Magistrate it does not appear that the learned Magistrate assigned any reason as to why the appearance of the petitioner was necessary at the time of examination under Sections 313 and 251 of the Code of Criminal Procedure, 1973. Learned Magistrate merely mentioned that there are certain facts which can only be explained by the accused persons, and those facts are only within their knowledge, and as such, their presence may be required. In my view, the order of the learned Magistrate cannot be said to be a speaking order, so as to justify the presence of the petitioner at the time of examination under Section 251 or under Section 313 of the Code of Criminal Procedure, 1973."

The Court also placed reliance on the Calcutta High Court judgement in Vivek Bajoria v. State and the Supreme Court judgement in Shaleen Khemani v. The State of West Bengal wherein the Courts have held that in order to withhold an exemption from personal appearance under Section 205 of the CrPC, the Court must always indicate sound reasons and such discretion must be exercised judicially.

Accordingly, the Court disposed of the petition by directing the Magistrate to record the plea of the petitioner through his advocate without calling for the petitioner's personal appearance. However, in the event the concerned advocate remains absent during proceedings, the Magistrate shall be at liberty to recall the dispensation granted under Section 205 of CrPC, the Court added.

Case Title: Sanjay Jain v. State

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