P L D 1962 (W (PLP)

5. Section 205, Cr. P. C. reads as under: "(1) Whenever a Magistrate issues a summons he may if he sees reason so to do, dispense with the personal attendance of the accused, and permit him to appear by his pleader. (2) But the Magistrate inquiring into or trying the case may; in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in manner hereinbefore provided."

6. The learned counsel for the opponent Gul Muhammad relied on Ram Dulare and others v. Adjudhya Singh (14 Cr. L J 604) and Aditya Pd. Baghchi v. Jogendra Nath Maitra (A I R 1948 All. 393) and Mst. Kamal Devi and others v. Pannalal Agarwalla (A I R 1952 Assam 151). In 14 Cr. L J 604 it was remarked ...... "The section (section 205) gives the power only in cases where summons has been issued against the accused. Reading the section with section 204, it is clear that the Legislature intended to give the power in two classes of cases, viz., (1) cases where summons would issue in the first instance under the 4th Schedule and (2) cases in which the Magistrate in the exercise of a wise discretion would substitute summons for warrant." At page 605 Their Lordships remarked: "So here, we think the Magistrate on discovering his mistake can make an order discharging the bail‑bond and directing the major process of warrant to take effect as the minor process of summons. The process issued being then in law a summons, the Magistrate has power to make an order under section 205." In other words their Lordships substituted summons for the warrants issued by the Magistrate in the first instance.

7. In A I R 1948 Allahabad 393 their lordships made the following observation: "Section 205 does not, in our opinion, deal with the jurisdic tion of a Magistrate to dispense with the personal attendance of an accused person after a summons or warrant has been served on the accused. That question would usually arise after an accused has appeared in Court and there seems to be no reason why this section should be read as debarring a Court from considering the request of an accused to appear by a pleader merely because a warrant had been issued in the first instance. We are of opinion that section 205, only applies to the stage where a Magistrate is considering the issue of a summons or warrant for the appearance of an accused person and no further. This is our answer to the first question." With due respect, these observations appear to be against the plain words of section 205, Cr. P. C. However in this Allahabad case the Magistrate had ordered issue of summons against the accused when the accused did not appear in obedience of bailable warrants issued against him and his counsel applied for exemption: In other words the Magistrate had substituted the issue of summons for warrants issued already.

8. Similarly (Mst. Kamal Devi and others v. Pannalal Agar walla) lays down the same law as in A I R 1948 All.

393. It appears that in this Assam case also their Lordships substituted summons for the warrants issued by Magistrate as can be seen from their remarks: "Even if the authority of the trial Magistrate to exempt the petitioners from personal attendance were a matter of some doubt, this Court can grant the relief prayed for in the exercise .of its inherent jurisdiction under section 561‑A. In a suitable case and for securing the ends of justice or to prevent an abuse of the process of the Court, it may pass any order in the exercise of its inherent powers, which are not limited, or affected by anything contained in the Code. This inherent power has been exercised to dispense with the personal attendance of the accused In re Ummal Hesanath, A I R 1947 Mad.

433. In Mst. Saji v. Mst. Bhimi A I R 1930 Nag. 61, its exercise in such cases was found to be permissible. The circumstances of this case attract the exercise of the inherent jurisdiction of this Court, and I, therefore, entirely agree with my learned brother in the order he has proposed." It is therefore obvious that in all, the rulings relied upon by the learned counsel for the accused bailable warrants were substituted by summons to make section 205 applicable for the purpose of exemption.

9. The learned Advocate for the opponent Gul Muhammad argued that a complaint on the same facts was lodged against Gul Muhammad in 1949 which was dismissed. Then a number of subsequent complaints were also lodged on the same facts which also ended in dismissal or discharge. The present complaint was filed by a different person than the complainant in the previous complaints but the facts were the same. He also referred to some civil suit having decided the matter which is the subject matter of the complaint.

10. I think the best order that I can pass under the circums tances will be that the order of issue of warrants is substituted by issue of summons as was done in 14 Cr. L J 604 under my powers under section 561‑A. The order of exemption is there fore maintained. With this modification the reference is rejected. S. B./A.H. Reference rejected.