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Judgment
M.C. Jain, J.—On the direction of the Court, the Public Prosecutor accepts notice.
This petition is directed against the order dated 24 where by the application for dispensing with the personal attendance of the accused persons through the brief holder Shri Surendra Goel, Advocate was rejected and the bail bonds were forfeited and the proceedings u/s 446, Cr. PC were ordered to be initiated.
Learned Counsel for the petitioner urged that Shri Surendra Goel, Advocate appeared on behalf of the counsel for the accused as his brief holder and he moved an application for dispensing with the personal attendance on that date i.e. 24. The learned Magistrate simply mentioned that the application rejected & has assigned reason as to why the application has been rejected but it appears that the application was presented the brief-holder, so it was rejected on that ground. Rule 65 of the General Rules (Criminal) reads as under:
Brief-holder--A legal practitioner when unable personally to attend to a case in which he is briefed, may hand over the brief to another legal practitioner without the latter filing a Vakalatnama.
Section 317, Cr. PC reads:
Provision for inquiries and trial being held in absence of accused in certain cases:
(1) At any stage of an inquiry or trial under if the Judge or Magistrate is satisfied, for reasons to be recorded, that the personal attendance of the accused before the Court is not necessary in the interests of justice or that the accused persistently disturbs the proceeding Court, the Judge or Magistrate may, if the 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 accused.
(2) If the accused in any such case is not represented by a pleader, or if the Judge or Magistrate consider his personal attendance necessary, he may, if he thinks fit and for reasons 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.
Under Rule 65 of the General Rules (Criminal), a brief holder can appear on behalf of the legal practitioner without filing any Vakalatnama. A legal practitioner is empowered u/r65 to hand over the brief to another legal practitioner, if he is unable to appear personally in a case is which he is briefed. u/s 317, Cr. PC an application may be presented for dispensing with the persons attendance of the accused It is not in dispute that in the present case, Shri Chavand Dan was the legal practitioner for the accused-petitioners and on 24-5-1988 appearance was made by Shri Surendra Goel as his brief holder and as such without filing Vakalatnama, he could appears. When be can appear in the case, on behalf of Shri Ghavand Dan, then in my opinion, legitimately be could move an application for dispensing with the personal attendance of the accused-persons. In view of Rule 65, thus, Shri Surendra Goel Advocate was competent to move an application for dispensing with personal attendance of the accused person and the Magistrate rejects such an application, then it was obligatory for him to have assigned reasons. Simple rejecting the application was not enough as from such rejection, it is not known for what reasons the application is rejected. Thus impugned order deserves to be a set aside.
Accordingly, the petition is allowed and the important order of rejection of application as well as of forfeiture of bail bonds and initiation of proceedings u/s 44 Cr. PC is set aside. The petitioner shall now appear before the learned Magistrate on the appointed dated.