Calcutta HC: Magistrate can’t impose Conditions to Dispense Personal Appearance U/S 205 CrPC2 min read
The Calcutta High Court has ruled that a Magistrate cannot place conditions on an order exempting an accused from appearing in Court under Section 205 of the Code of Criminal Procedure.
It was pointed out that the Magistrate had only noted in passing the impugned order that there are certain facts that can only be explained by the accused parties, and that those facts are exclusively within their knowledge, and that their presence may be required.
The petitioner had filed an application with the Metropolitan Magistrate under Section 205 of the CrPC, requesting that he be excused from appearing in Court during proceedings under Sections 138 and 141 of the Negotiable Instruments Act, 1881. The petitioner was ordered to be personally present for examination under sections 251 and 313 of the CrPC by the Magistrate in an order dated February 15, 2017. The Sessions Court later upheld this decision.
Aggrieved by the aforementioned order, the present plea had been filed in the Calcutta High Court. Both the Magistrate and the Sessions Court, according to the petitioner’s lawyer, were unaware of the scope of Section 205 of the CrPC and hence placed conditions automatically while pleading 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.”
As a result, the Court dismissed the petition by instructing the Magistrate to record the petitioner’s plea through his attorney without requiring the petitioner to appear in person.
The Court stated that if the concerned lawyer is not present during the proceedings, the Magistrate is free to revoke the permission granted under Section 205 of the CrPC.
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