S.C. Jain vs The State of Bihar and Another

Surendra Narain Jha, J.—In this application u/s 482 of the Code of Criminal Procedure (hereinafter referred to as the Code), the petitioner has prayed for quashing the order dated 27.6.1981 passed by a Judicial Magistrate by which he has rejected the application filed on his behalf u/s 205 of the Code and has directed the petitioner to be present in court personally so that the particulars of the offence of which he is accused shall be stated to him. The relevant facts for disposal of this application in short, is that a complaint was filed in the Court of the Additional Chief Judicial Magistrate, Buxar, alleging offence u/s 296 and 298 of the Indian Penal Code, hereinafter referred to as Penal Code, on 5.8.1980. The Additional Chief Judicial Magistrate after an enquiry u/s 202 of the Code took cognizance of offence under sections 296 and 298 of the Penal Code by his order dated 16.9.1980. By the same order, the learned Additional Chief Judicial Magistrate was pleased to order for issuance of summons to the petitioner for appearance on 30.9.1980 and transferred the case to the court of Md. Mustaquim, Judicial Magistrate, Buxar, for trial. The petitioner appeared on 30.9.1980 through his counsel. According to the prosecution as disclosed in the complaint petition, the complainant is a Hindu and is a devotee of Sri Bajrangbali (Hanumanji) and worships Sri Hanumanji''s image at his residence. It is alleged in the complaint petition that the petitioner is a Marketing Executive of vanaspati product of Rohtas Industries Ltd. (in brief, the company) which, throughout the country, is branded as Hanuman vanaspati with photograph of Hanuman pasted on every container and is purchased throughout the country by persons of diverse castes and community. According to the complaint, every body shows disrespect to the photograph of Hanuman, knowingly or unknowingly; somebody keeps the left over food in the container with the photograph pasted thereon; some body puts the photograph-affixed tins on fire which deeply wounded the feelings of the complainant. From a perusal of the complaint petition, it appears that the complainant claimed to have addressed a number of letters to the owner of the company stating therein that he had no objection to the inscribing of the name of Hanuman on tins but the photograph of Hanuman should not be affixed since it wounds the feelings of his devotees.

Further case of the complainant is that on 3.8.1980 while he was present at the Buxar Railway station, he came to know that the petitioner was waiting at platform No. 1 to go to Patna by the mail. He along with a few other persons approached the petitioner and wanted to persuade him to request his Managing Director that the photograph of Hanumanji should not be affixed on tins. The petitioner replied that the photograph of Hanuman is being affixed on the tins for more then two decades and he has not received any complaint. According to the complainant, the petitioner replied that the complainant should correspond with the Government instead of complaining to him. It is further alleged that the complainant also pointed him at a nearby hotel to see how the photograph affixed on the tins were being put on fire. It is alleged that the petitioner also tore away the photograph of Hanuman and threw the same into the dust-bin and observed that thousands of such photographs are burnt everyday and it is not possible for him to take care of the same everywhere. Such words of the petitioner deeply wounded the feelings of the complainant and, there fore, he filed the said complaint in the court of the Additional Chief Judicial Magistrate as mentioned above, a copy of which has been made Annexure-1 to this application.

Learned Magistrate took cognizance against the petitioner for offence under sections 296 and 298 of the Penal Code. As I have already stated above, the petitioner is the General Manager in the company and is Incharge of sales section at Patna. It is relevant here to mention that the company has its registered, office at Dalmianagar in the district of Rohtas. It is engaged in manufacture of a wide variety of products, including vanaspati, which is marketed in the brand-name of Hanuman. The company is Using the brand-name, namely, ''''Hanuman" since 1943 and the same is also registered as trade mark No. 237292 dated 30.8.1966 under the Trade and Merchandise Marks Act, 1958, by the Registrar of Trade Marks and has been registered under part A of the Registers in the name of Rohtas Industries Ltd. This has been renewed from time to time under the said Act. From the petition, it appears that after the company had applied to the Registrar of the Trade marks for registration of the name "Hanuman" the application was duly published and objections were invited from the public in relation to the proposed registration and after observing all the formalities under the Act ''Hanuman'' was registered as the trade mark for the vanaspati product of the company. There is no dispute regarding this.

It appears that the complainant has also filed Title suit No. 112 of 1980 (Kashinath Mishra vs. Rohtas Industries Ltd.) in the Court of 2nd Munsif, Buxar, for a declaration that sticking of the photos of Sri Hanumanji on the tins of vegetable oils is outrageous to the religious sentiments of the plaintiff and, therefore, he prayed that permanent injunction be issued against the defendant from sticking photos of Sri Hanumanji on the vegetable oil tins and the matter is pending on the injunction matter in this Court.

The petitioner in the criminal case appeared and filed vakalatnama on his behalf on 30.9.80 and he also filed an application u/s 205 of the Code which was disposed of by order dated 9.10.1980. The learned Magistrate allowed the said application and permitted the petitioner to be represented through his counsel. A copy of the order is Annexure 3 to this application. The case was adjourned from day to day and 16.5.1981 was fixed for evidence. But, on that date, the complainant failed to produce any evidence. On 16.5.81, counsel for the petitioner filed hazri and he was informed by the Bench clerk that the case was adjourned to 27.6.81. As it appears from the petition, when the counsel for the petitioner went to court to file hazri on behalf of the petitioner, he was informed by the Bench clerk that the case was fixed for explaining the accusation to the accused in person. Thereafter, an application was filed on behalf of the petitioner through his lawyer on 27.6.81 to explain the accusation to the counsel for the petitioner and the same was rejected by the impugned order. The petitioner, being aggrieved by the said order, has moved this court for quashing of the same.

Mr. Katriar, learned counsel appearing on behalf of the petitioner submitted that the impugned order is illegal and fit to be quashed. It was submitted that, on earlier occasions, the petitioner was permitted to be represented through a lawyer there is no justification at this stage. According to him, The petitioner is an Executive Officer of the company and he is always busy with day to day affairs of the company and, therefore, he should be allowed to be represented through a lawyer as provided u/s 205 of the Code. My attention was drawn to the provisions of section 205 of the Code which reads as follows:--

205(1) Whenever a Magistrate issues a summons he may, if he sees persons 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 the manner hereinbefore provided.

Learned Magistrate in the impugned order has stated that A petition has been filed on behalf of the accused that accusation be explained through his counsel. Since the accused had already been directed on the last date to appear in the court in person and no reasons has been given in the aforesaid petition as to what prevented him from appearing in court, therefore, the petition stands rejected. The accused is directed to appear in court personally on the next date failing which the accused shall be deprived of the benefits of the provisions contained in section 205 Cr.P.C. already given to him and W/A non-bailable will be issued against him.

It was submitted that the last order was passed on 16.5.81 and the counsel for the petitioner was told by the Bench clerk that the next date was fixed on 27.6.81 but no order was communicated to his lawyer. Reliance is placed on a decision in the case of Roop Kumari Tiwary and others v. The Registrar of Companies, Bihar (1973 B.B.C.J. 535) where a similar point was raised. In that case it was held that when an accused has been allowed to be represented by a pleader u/s 205 of the Code, he can be allowed to be represented by the pleader for the purpose of section 242 of the Code as well.

Learned counsel appearing for the State submitted that the representation of the petitioner through a lawyer was conditional. He pointed out that the order by which the petitioner was allowed to be represented was conditional because it is mentioned in that order that "the accused shall have to attend the court in person if and when required during trial of the case".

I have examined the decision in the case of Roop Kumari Tiwary (supra) and the provisions of section 205 of the Code. I have also examined the provisions of section 242 of the old Code corresponding to section 251 of the new Code. It is admitted that the offence for which the petitioner has been charged is triable as summons case by the Magistrate. Chapter XX of the Code deals with the trial of summons cases by Magistrates. Section 251 lays down that "when in a summons-case the accused appears or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make, but it shall not be necessary to frame a formal charge". Sub-section (2) of section 205 of the Code no doubt gives discretion to the Magistrate to direct personal attendance of the accused at any stage of the proceeding. There is no doubt in it. Section 205 applies when summons has been issued in the first instance. It also covers those kinds of cases where, though summons ought to have been issued in the first instance, but warrant has been issued by mistake instead of issuing summons.

Reference may be made to a decision in the case of Ravi Singh and another v. The State of Bihar (1979 BBCJ 437) where Muneshwari Sahay, J., has considered a number of cases and held that the benefits of section 205 of the Code should be liberally extended particularly in all trivial and technical cases, the accused persons, who are ladies, old and sickly persons, workers in factories, daily wage earners, other labourers and busy business people or industrialists. It is, no doubt, true that the petitioner, who is an accused in this case, is an Executive head of the company and sole Incharge of Vanaspati products section Patna. At this stage, I cannot express my opinion so far as the merit of accusation is concerned, but, when the cognizance has been taken, the petitioner will have to go to court and he may have to devote much of his time instead of attending to office and to perform day to day affairs of the company. I have mentioned the case of Roop Kumari Tiwari (supra) where K.B.N. Singh, J., (as he then was) observed as follows:--

..............The purpose, scheme and the language of sections 242 and 342 of the Code being different, I have no doubt in my mind that when an accused has been allowed to be represented by pleader u/s 205 of the Code, he can be allowed to be represented by the pleader for the purpose of section 242 of the Code as well.

This decision was also approved by a Division Bench of this court in the case of Shrinivas Bajpayee Vs. The State of Bihar and Others, wherein their lordships have held that the plea of not guilty by the lawyer on behalf of the accused was valid. In that case, it was also pointed out that it was not a case, as is to be found in section 342, that the court is required to question the accused person directly and the answers given by the accused have to be recorded in the words as spoken by the accused. Section 251 of the Code, in my view, merely requires answer to the question as to whether the accused pleaded guilty or claimed to be tried on the charges and this part can be complied with even by a pleader on behalf of the accused. In a warrant case, personal attendance of the accused may be a must but in a summons case, in my opinion, it is not essential that such formality can be done only by the accused and not by his pleader. The Division Bench of this court has considered this aspect of the matter in great detail and come to the conclusion that at this stage the accused is not expected to say anything more. Their lordships observed "It is not a case, as is to be found u/s 342, that the Court is required to question the accused person directly and the answers given by the accused have to be recorded in the words as spoken by the accused. The section merits permits an answer on the question as to whether the accused pleaded guilty or claimed to be tried on the charges."

Taking all the facts into consideration and having considered them minutely, I am of opinion that the learned Magistrate was not justified in rejecting the application. The State would not be prejudiced if that part can be performed by the pleader on his behalf. If a pleader on behalf of the accused will plead not guilty then it is open for the prosecution to adduce evidence in support of the charges made against the accused. That will not prejudice either party. In that view of the matter, I quash the order dated 27.6.81 passed by the learned Magistrate. In the result, the application is allowed and the Magistrate is directed to proceed with the case in the light of the observations made above.