ORDER

1. The only question that arises in this revision petition under Section 397, Criminal Procedure Code is as to whether Section 240, Criminal Procedure Code permits an accused to answer the charge through his Counsel.

2. The learned Magistrate, upon consideration of the police report and the documents sent with it under Section 173, Criminal Procedure Code, and after hearing the prosecution and the accused, has formed an opinion that, there is a ground presuming that the accused in the case, including the present two respondents, have committed offences punishable under Section 498-A, Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act, 1961. What remains is, framing of the charge and to read it over and to explain to the accused and to ask the accused whether they plead guilty of the offences punishable under Section 498-A, Indian Penal Code and Sections 3, 4 and 6 of the Dowry Prohibition Act, as required by Section 240, Criminal Procedure Code. The learned Magistrate, by the impugned order, has permitted the respondents herein among the accused in the case to so plead under Section 240(2), Criminal Procedure Code through their Counsel. It is in the following circumstances:

The respondents are residing in the United States of America, pursuing their respective avocations. At the time they were granted bail in the case concerned herein, certain conditions had been imposed by the learned Magistrate including surrender of passports. In that regard, the respondents and others approached this Court under Section 482, Criminal Procedure Code in Criminal Petition No. 40 of 1996. This Court, by the order dated 11-1-1996, relaxed the conditions and permitted three of the accused including these two respondents to return to U.S.A. subject, among other conditions, to give an undertaking before the Trial Court that they shall appear on the dates required by the Trial Court without fail. That is how the matter is being proceeded with before the learned Magistrate from time to time without the presence of the three among the four accused including the present respondents. When it came to the stage of Section 240, Criminal Procedure Code, the learned Magistrate did not think it necessary to insist upon the presence of the respondents to answer the charge and instead, permitted them to answer the charge through their Counsel, which the State has questioned in this revision petition.

3. The learned State Public Prosecutor Sri. Nanjundaiah strenuously urges that, while it is true that the order of this Court dated 11-1-1996 in Criminal Petition No. 40 of 1996 referred to above, enables the respondents to be away in U.S.A. so long as the Trial Court does not insist upon their presence, that does not mean that, where the statute mandates that on a particular occasion the presence of the accused shall be necessary, the accused-respondents can take advantage of the above said order of this Court. The learned State Public Prosecutor Sri Nanjundaiah submits that, the stage of Section 240, Criminal Procedure Code is one such occasion wherein the learned Magistrate has no discretion to dispense with the attendance of the accused in the matter of answering the charge. Sri Balan, learned Counsel for the respondents, referring to various decisions, urges that, though personal attendance of the respondents has not been dispensed with under Section 205, Criminal Procedure Code, the permission granted by this Court in Criminal Petition No. 40 of 1996 as referred to above is virtually an exemption in terms of Section 205, Criminal Procedure Code and that the respondents need not be present in the Court until so ordered by the Trial Court and that Section 240, Criminal Procedure Code is not a stage at which the Magistrate has no discretion to continue such exemption of the respondents from attending the Trial Court and that if the Magistrate were to exercise the discretion in that regard, Section 240, Criminal Procedure Code permits the learned Magistrate to record the plea of the accused even through his Counsel.

4. It is true, by virtue of the order of this Court in Criminal Petition No. 40 of 1996, the respondents are virtually granted exemption from personal appearance almost in terms of Section 205, Criminal Procedure Code and that they need not appear in the Court until the Trial Court requires their presence. But, it cannot be said that the Trial Court has absolute discretion in the matter of continuing the exemption even where at a particular stage, the personal appearance of the accused is mandatory by a particular provision of Criminal Procedure Code. In my opinion, Section 240, Criminal Procedure Code is one such stage. The said provision does not permit the accused in a warrant case to answer the charge through his Advocate. The respondents herein, therefore, taking advantage of the order of this Court in Criminal Petition No. 40 of 1996 as referred to above, could not have been permitted to answer the charge through their Counsel. The impugned order, therefore, is legally unsustainable.

5. Having said so, in the normal circumstances, the appropriate course would have been to set aside the impugned order and to remit the matter to the learned Magistrate to insist upon the presence of the respondents-accused and to record their plea to the charge in their presence. But, it so happens that the impugned order had been passed on 11-12-1996 and the revision petition came to be filed in the early part of 1997. There was no stay of the operation of the impugned order all these days, that is, for more than a year. The resultant position is that, as on today, that is, at the end of June 1998, it is submitted at the Bar that, not only that the impugned order has been given effect to with the respondents answering the charge through their Counsel, but, that even the recording of evidence has commenced with two prosecution witnesses having already been examined till now. If there is any legal infirmity in the conduct of the trial like answering of the charge without due compliance with Section 240, Criminal Procedure Code, eventually the accused-respondents may plead prejudice in the event the case ends in conviction. To avoid such a contingency, it would have become necessary to set aside the impugned order and to remit the matter for compliance with Section 240, Criminal Procedure Code even at this stage, that is, even after the impugned order is given effect to and after two witnesses have been examined. Sri Balan, learned Counsel for the respondents-accused, submits and gives an undertaking that, in the event the case ends in conviction, the accused-respondents will not put forth this ground of non-compliance with Section 240, Criminal Procedure Code as a ground causing prejudice to the accused. In view of this undertaking by Sri Balan, learned Counsel for the respondents, I am of the opinion that, at this late stage when the order has already been given effect to and when the case has advanced to such a stage wherein two witnesses have already come to be examined, it would not be necessary to interfere with the order.

6. In these circumstances, revision petition disposed of accordingly.