P L D 1988 Karachi 379 (PLP)

A question has arisen in this case and in Criminal Origins Misc. No.13 of 198?. State Bank of Pakistan v. Khalid Mohsin an others whether personal appearance of accused Nos. 2 to 5 in that case and personal appearance of accused No.2 in Criminal Origin, Miscellaneous 13 of 19$7, whose presence in Court has been dispense with is necessary at the time of framing of charge. The reliever facts giving rise to. the question may first briefly be stated which are as follows:

2. In Criminal Original Misc. No.11 of 1987, by the order date 26‑10‑1987, accused Nos. 2 to 5 being Pardahnasheen ladies, were exempted from personal appearance in Court on an application mad under section 540‑A Criminal Procedure Code read with section 561‑A Criminal Procedure Code and Mr. A. M. Naqvi, Advocate, :vas allow to appear on their behalf. It was stated in the application that that applicants undertook to appear through their advocates. Similarly, Criminal Original Misc. No.13 of 1987, on an application made under section 540‑A, Criminal Procedure Code personal appearance in Cour of Mrs. Fatima Sultana, accused No.2, by the order dated 20‑12‑1987 was dispensed with and she was allowed to be represented by Mr Muhammad Naqi, Advocate as requested in the application. It may b stated that the Vakalatnamas filed on behalf of the aforesaid accuse ladies by the two advocates authorise them to appear and act o their behalf.

3. The Criminal Procedure Code contains two provisions which provide for dispensing with the attendance of the accused persons These are sections 205 and 540‑A. Section 205 of the Code reads: "205.‑Magistrate may dispense with personal attendance o accused. (1) Whenever a Magistrate issues a summons, he may, if he see reasons to so do, dispense with the personal attendance o the accused, and permit him to appear by his pleader (2) But the Magistrate inquiring or trying the case may, in hi discretion, at any stage of the proceedings direct the person e attendance of the accused, and, if necessary enforce such attendance in manner herein before provided." Section 540‑A which reads as follows: "540‑A.‑‑ Provision for inquiries and trial being held in the absence of accused in certain cases. (1) At any stage of an inquiry or trial under this Code, where two or more accused are before the Court, if .the Judge o~ Magistrate is satisfied for reasons to be recorded, that an; one or more of such accused is or are incapable of remaining before the Court, he may, if such accused is represented by a pleader, dispense with his attendance and proceed with such inquiry or trial in his absence, and may, at any subsequent stage of the proceedings, direct the personal attendance of such accused. (2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate considers his personal attendance necessary, to be recorded by him either adjourn such inquiry or trial, or order that the case of such accused be taken up or tried separately."

4. Section 205 is contained in Chapter XVII the heading whereof is 'ON THE COMMENCEMENT OF PROCEEDINGS BEFORE COURTS'. This heading was substituted, as stated at the bar by Mr. A.M. Naqvi, by the Law Reforms (Amendment) Ordinance, 1972 (Ordinance No.XXXIV of 1972), is before the amendment by the aforesaid Ordinance the heading was 'ON THE COMMENCEMENT OF PROCEEDING BEFORE THE MAGISTRATE.' It is, therefore, submitted by Mr Naqvi that section 205 of the Code of Criminal Procedure call he Pressed into service before any Court including Sessions Court and High Court. In support he referred to soma decisions. it is further submitted that in a case where the attendance of accused is dispensed with under section 540‑A of the Criminal Procedure Code the ‑:charge could be framed in his absence. I agree with both the submissions as there are a number of precedents on support thereof, some of which have been cited by Mr. Naqvi and the other I have noticed with which I would deal a little later.

5. Now, it is well‑settled the words "to appear by pleader" used in section 205 of the Criminal Procedure Code in their ordinary acceptance mean "represented by pleader", that is, having pleader to act and to plead: Hari Narayan Chandra and others v . Emperor AIR 1928 Cal. 27 (32). Appearance by a pleader involves the performance of all acts that devolve upon the accused in the course of the trial, such as: (1) pleading guilty or not guilty under section 255 or under Ss.242 and 243 Dorabshah Bomanji Dubash v. Emperor AIR 1926 Bom. 218. (2) filing a written statement embodying the plea of accused (1917) 21 C.W.N. cl.(xviii) cl.(xviii), Re Sukhlata, (3) making the necessary answers to an examination under section 342 Ishwar Das v. Bhagwan Das A I R 1934 All. 693 (694), (4) hearing a deposition of a witness read over under section 360(1), Hari Narayan Chandra and others v. Emperor AIR 1928 Cal. 27; (5) hearing of a judgment, the sentence being one of fine only or the accused being acquitted under section 366(2), Dorabshah Bomanji Dubas v. Emperor (Supra). See Code of Criminal Procedure, 1898 by Chitaley, Second, Edition Vol. II, Page 1219.

6. Regarding pleading or not pleading guilty under section 255, of the Criminal Procedure Code, which has now been omitted or under sections 242 and 243 of the criminal procedure code by an advocate it was held to be within the authority of advocate. Reliance is placed on a Division Bench decision of the erstwhile court of the judicial commissioner, Sind, consisting of pratt, J, C., and crouch, A,J,C., in the case of the Crown v. Khatijan (1912) 6 Sind L R

206. In this case it was held that when an order under section 205 has been made the provisions of this section are complied with when the pleader for the defence is examined on behalf of his client. It was reasoned that section 205 allows the accused to appear by pleader and such appearance involves the performance of all acts which devolve upon the accused in the course of the trial such as answering the examination by the court under section 342 or pleading or refusing to plead to the charge under section 255. it was further reasoned that the terms of section 366(2) of the criminal procedure code support this view for it contemplates the absence of the accused upto the stage of judgment and even after that stage where the judgment is one of acquittal or one awarding a sentence of fine. Reference was also made to the form of summons to an accused person contained on Schedule V, Form I, which runs as follows:- Whereas your attendance is necessary to answer to a charge of you are hereby required to appear on person or by pleader.

7. In Dorabshah Bomanji Dubash v. Empperor (supra) referred to earlier it was held by a Division Bench of Bombay High Court consisting of Faweett, C.J., and Madgavckar, J., at page 221 of the report as follows:- "The next point to be considered is whether this was a ca in which, first of all, the Court dispensed with the attendant of the accused under section 205; and, secondly, the estate manager can be said to be a pleader authorised by the accused to represent him for the purpose of pleading under section 242 of the Cr.P.C. Inasmuch as the Magistrate's record shot that he did allow the estate manager ,to appear and did n insist upon the presence of the accused, and inasmuch as 1 acted upon the estate manager's plea, I think there can be no doubt whatever that impliedly, he had dispensed with the attendance of the accused under section 205, and we al understand that the summons was in the form permitting h to appear by pleader. But I think it is certainly desirable a case of this kind that a Court should not leave such a poi to mere implication, but should note upon his record the permission under section 205 has been given. However, mere omission to do this would be an irregularity end would not justify our interference."'

8. In the case of Emperor v. C.W. King (1912) 13 Cr. L J 4 fir Dinshaw Davar, J., of Bombay High Court held that section 21 of the Criminal Procedure Code empowers a Magistrate to dispense; with the attendance of the accused in cases where he issues a summons and it seems to me that it could not have been the policy of the Legislature that the High Court should not have similar powers in a proper cases.

9. The Bombay case has been followed by a Single Judge Patna High Court in Sarsibala Dawan and others v. The State AIR 1962. Patna . In this the Court had allowed the him to represent the accused who pleaded guilty to the charge but there was nothing on record. In this context the following observations were use which have direct bearing on the point raised gyre me nether the pleader could plead guilty o the large or not. "The Court should also note on the record that he has given the requisite permission to such persona to represent the accused, and should not rave the utter to mere implication or speculation, Where there is no power of attorney or a letter of authority or the a to hoes that person has been appointed by an accused :sin to appear and lead on his behalf, the Court is not entitled to accept a plea of guilty put forward by such a person and to convict the accused upon such a plea. Only when the Court has allowed an accused person to appear by a pleader or by "any other person", as envisaged by action of the Code, it must be taken that such appearance involves the performance of all acts that devolve upon the accused in the course of the trial, unless of course, the Magistrate thins it necessary or desirable that the accused himself should a present for any particular purpose. Under sections 242 and 243 of the Code, therefore, the pleader of the accused, any other person, appointed by the accused to represent him arid permitted by the Court may made the necessary answers and plead guilty on his behalf,"

10. The Bombay ease has also been followed by a Single urge of Madhya Pradesh High Court in Hmerkunwarbai v. Sate 1957Cr.LJ 672. wherein it held that where the Magistrate permits the accused to appear through hey paler under section 05, it rust be taken that such appearance, y her pleader involves performance f all acts that devolve upon the accused in the course of the trial for the purpose of protecting the interest of the accused. Therefore, in a summons case it is open for a pleader to make the necessary answers and either pled gusty or claim to be tried, candor sections 242 and 243.

11. It was however contended by Mr. Shibli that the accused should give specific powers to the advocate to plead guilty on is behalf. In my view, as stated herein that it an advocate authorised to appear r to represent him it ears that a can plead guilty or plead not guilty to the change. Further, ire Criminal original Msc. No.1.3 of 1987, the application for dispensing with her attendance is signed by accused No.2 who has specifically prayed thereon to ally advocate to represent her. therefore. of the view that the advocates in tee cases could while representing the accused answer the charge which should about the answer of the said accused. It gas further :streneously argued by Mr. Shibli that in examination of accused ladies under section 342), of the Criminal procedure Code if the case proceeds further, the presence of the accused ladies whose appearance has been opted would be necessary and in support of relied on Dundhnath shaw and another v. The 'State AIR 1958 Cal.431, which supports the arguments, but Sind view in the crown v. Khtijan (1912) 6 Sind and other high Court's view is different but 1 would leave it ‑open as that stage has not yet reached and the question was not raised before, Further ladies in view of the provisions of sections 205 and 540‑A, Criminal Procedure Code can be directed to attend the Court for the aforesaid purpose.

12. I, therefore, hold that the charge can be framed in the presence of the advocate for the accused who have been granted exemption from personal appearance in Court under Section 205, Cr. P. C. in cases like the present one. However, they would appear as and when required by the Court as mentioned under sections 205 and 540-A of the Criminal Procedure Code, 1898. M.B.A. /S‑148/K Order accordingly.