ORDER Bennet, J.
1. These are two criminal references by the learned Sessions Judge of Benares at the instance of a complainant Jagdish Narain, a resident of Benares. Jagdish Narain made a complaint under Sections 420/109 and 120-B, I.P.C., against four persons, (1) Babu Ram Gupta of Lucknow, (2) Ramgopal, (3) E. Jones and (4) Balram Gupta, all of Bombay. The complaint alleged that the complainant had accepted an agency for selling cloth supplied by the firm of accused called the Swadeshi Cloth Mills, Bombay, and that the gist of the offence was in para. 11 they dishonestly and with a view to defraud the complainant and the public all along assured the complainant that the accused were sending the complainant only Swadeshi goods, which the complainant believed, but that actually some foreign goods were sent. The complainant filed two letters from the accused's firm but he did not file the alleged written agreement which he had with the accused and of which he complains the accused have committed a breach which amounts to a criminal offence. There is therefore nothing before the Court at this stage to show that there was any such agreement with the accused except the mere allegation of the complainant. The case was sent to a Special Magistrate in Benares and he issued bailable warrants for the four accused. The first accused Babu Ram Gupta appeared in Court on 11th August 1939 and he was directed to execute a personal bond of Rs. 500 with one surety of Rs. 100. He in his petition alleged that the other accused were respectable persons in Bombay and that the accused or some of them had filed a case in Lucknow against Moti Lal and Sri Ram for taking away their property on 14th July 1939. This prior case in Lucknow was also mentioned in para. 16 of the complaint of Jagdish Narain and his complaint on 26th July 1939 was subsequent. The application of Babu Ram Gupta further said that the present case of Jagdish Narain had been filed to harass the accused who were in Bombay and that they would attend on the date fixed. The Magistrate ordered on 11th August 1939:
The warrant against other accused may be cancelled if he undertakes to bring them on the next hearing, i.e. 31st August 1939.
2. Such an undertaking did actually appear in the application of Babu Ram Gupta: "They will appear on the date fixed." The Magistrate then wrote a letter to Bombay of which he did not retain a copy, but he received a reply from the Commissioner of Police, Bombay, dated 2nd September 1939(paper No. 26-B) stating:
With reference to your letter dated 11th August 1939 to the address of the District Magistrate, Bombay, I have the honour to return the accompanying three arrest warrants unexecuted as desired.
3. In quoting this letter the Sessions Judge has forgotten to enter the date 11th August and has only entered the month. It is clear therefore that on the very date on which the application was made by accused 1 Babu Ram Gupta, the Magistrate issued a letter to the District Magistrate, Bombay, asking him to return the three warrants unexecuted. Learned counsel argues that this does not amount to the cancellation of the warrants under Section 75, Criminal P.C. Section 75(2) states:
Every such warrant shall remain in force until it is cancelled by the Court which issued it or until it is executed.
4. Now the Code does not define a warrant but in Sch. 5, Form No. 2, the form of a warrant is given under Section 75 as follows:
To (name and designation of the person or persons who is or are to execute the warrant).
Whereas of stands charged with the offence of (state the offence), you are hereby directed to arrest the said, and to produce him before me. Herein fail not.
Dated this day of 19.
5. This form shows clearly that a warrant is an order addressed to a certain person directing him to arrest the accused and to produce the accused before the Court. The warrant may have a further provision for admitting the accused to bail. But in each case the warrant is an order directed to someone to arrest a certain accused and bring him before the Court, and the person to whom it is addressed may if he is a Magistrate or police officer endorse the warrant to some one serving under him. When the Magistrate in Benares wrote to the District Magistrate in Bombay asking him to return the warrants unexecuted then it is clear that the warrants were cancelled. The essence of the warrant being an order directed to the District Magistrate in Bombay the letter to the District Magistrate telling him to return that written order is a cancellation of that order. When an order is revoked in this manner the order no longer exists. This is perfectly clear in the case of an oral order. If any one said to a police officer "arrest that man," and then said "do not arrest him" the order would no longer stand. Section 75(2) does not require that there should be any formal order on the record of cancellation. The Magistrate has discretion at any time to withdraw his warrant. The Magistrate withdrew his warrant and therefore the warrant was cancelled. It is clear therefore that after this letter had been received and acted upon by the Commissioner of Police in Bombay there was no longer any warrant outstanding for the Commissioner of Police to arrest; these accused and the Commissioner of Police could not have legally arrested these accused. Some argument was made that the Magistrate in Benares might have again sent the warrant to the Commissioner of Police. If he had done so, that would have been again issuing a warrant and the mere fact that he may not have written the warrant again would not make the matter nonetheless the issue of a fresh order. It is probable however that if he had desired to issue a fresh warrant he would not have used the old form because that would have led to confusion and if he had used the old form he would probably have explained in his new letter that he was doing so merely for the sake of convenience. The next proceeding in the case is a written application purporting to be made by the three accused from Bombay identified by Mr. Jagdish Prasad, advocate, who signs the application as identifying them with the date 28th August 1939. This application sets out as follows:
That the applicants are respectable persons and are being maliciously prosecuted with absolutely false allegations.
That the applicants are incapable of remaining before the Court and the applicants will be put to serious loss by their appearance in person in your honour's Court.
That the applicants would have to travel from Bombay where they reside for every hearing in the case.
It is therefore humbly prayed that the personal attendance of the applicants may kindly be excused and they may be allowed to appear through their advocate Mr. Jagdish Prasad....
6. On this the Magistrate wrote the order "Allowed Sd. A. Bari, 29th August 1939." The Magistrate therefore permitted these three accused to appear by their advocate. One of the criticisms that has been made of this application was made to the Sessions Judge who was told that the three persons did not actually appear before the Magistrate. The Sessions Judge states:
But the application in itself does not show that these three persons were present in Court that day.
7. The Sessions Judge failed to read and understand the sentence in the application which states: "That the applicants are incapable of remaining before the Court." This sentence implies that the three applicants were before the Court on the day in question. This is further confirmed by the fact that the advocate Mr. Jagdish Prasad above his signature and below the signatures of the three accused wrote the words "Id." This is clearly an abbreviation for "Identified" and means that he identified these three persons before the Court. The story now suggested by the learned Sessions Judge that these people did not appear in Benares would involve either the theory that the advocate went to Bombay to identify them or that the advocate told a lie when he wrote on the paper "Identified" below their signatures. Neither theory seems to me at all probable and there is nothing whatever to support these suggestions made by the complainant. If the complainant had any doubts whatever on the question of the presence of these three accused before the Magistrate it was open to the counsel for the complainant to make an application in writing to the Magistrate asking the Magistrate whether these three persons did or did not appear before him. No such application was made.
8. The next question argued is the legality of this order. Now the argument addressed to me is that Section 204, Criminal P. C, uses the words "a summons should issue in the first instance" and the suggestion is made that these words should be imported into Section 205(1). This sub-section does not use these words at all and it uses quite different language and it states as follows:
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.
9. The language used in this sub-section begins with the word "whenever." The learned Sessions Judge does not seem to have appreciated the meaning of this English word. The word "ever" implies different occasions and is in my opinion in contrast to the words used in the previous Section 204 about issuing a summons in the first instance. In the case of a warrant having been issued and recalled and a summons then having been issued it would appear to me that Section 205 will apply by virtue of this word "whenever." In the present case as the accused appeared before the Magistrate it was not necessary for him to issue a summons for their appearance. He had them before him, but he had exactly the same powers as if they had appeared before him in obedience to a summons. The point about the reference to a summons in Section 205 appears to me to be shown by the form for a summons in Sch. V, Form No. 1, which is as follows:
To of whereas your attendance is necessary to answer to a charge of (state shortly the offence charged), you are hereby required to appear in person (or by pleader, as the case may be) before the (Magistrate) of on the of Herein fail not. Dated this day of 19.
10. This shows that in sending a summons the Magistrate might either require appearance in person or appearance by pleader and he strikes out whatever words he does not desire to appear in the summons. All that is required in Section 205(1) is that the Magistrate should consider that a summons is sufficient for the appearance of the accused in the case and if he is of that opinion he may then permit the accused to appear by pleader. If, on the other hand, a Magistrate considers that a warrant is necessary, then the Magistrate considers that there should be an order for someone to arrest the accused and bring the accused before him or admit the accused to bail to appear before him. If that is the opinion of the Magistrate, it is obvious that he will not at the same time dispense with the personal attendance of the accused. No one would hold those two contrary views at the same time. This is all that is implied by the reference to a summons in Section 205. It appears to me that it was clearly within the jurisdiction of the Court when the accused were before the Court and the warrants had been recalled from Bombay to make the order which the Court did make allowing the accused to appear by pleader. As to the propriety of this order, I take into account the fact that this is a case filed apparently after the complaint filed in Lucknow, and that the complainant in this case has not yet filed in Court his agreement the breach of which he says amounts not only to be a breach of contract but also constitutes a criminal offence. There is therefore practically no material before the Court at present to indicate that there was any offence committed by the accused and there is nothing in the nature of a prima facie case. This is the matter which in my opinion should always be taken into account in considering the propriety of an order under Section 205(1), Criminal P.C.
11. Some reference has also been made to Section 540-A, Criminal P.C. That is a general Section which will apply to cases of all kinds whether the accused is in jail custody or whether he is on bail or whether he is appearing in obedience to a summons. In that Section the words used are "incapable of remaining before the Court." The only ruling which has been shown to me is Emperor v. Radha Raman (1930) 17 AIR All 817. In that case one of the accused in the Meerut Conspiracy case under Section 121-A, Penal Code-a non-bailable offence-was in custody and he had been permitted by the Sessions Judge to go to Calcutta to see his sister who was ill. There is nothing in the ruling which indicates that he was allowed to proceed on bail. So the presumption is that he was sent to Calcutta in custody. It was then held by a learned single Judge of this Court that Section 540-A of the Code would not apply, as in that case it could not be said that the accused was incapable of remaining before the Court and that these words should be used in their plain and ordinary meaning. The Judge however did not proceed to define what he considered would be the plain and ordinary meaning of these words and the ruling therefore does not throw any light on the possible meaning to be assigned to these words. I do not think that this Section is relevant to the present case and therefore I need not discuss the meaning of these words and whether they would or would not apply to the present case. In the present case the trial had not begun when the Magistrate passed his order and therefore the stage of Section 205(1), Criminal P.C. was still existing. For these reasons I consider that no case has been made out for the Criminal Reference No. 843 of 1939.
12. I now come to Criminal Reference No. 844 of 1939. The date fixed for this trial of these four accused persons was 31st August 1939 and on that date the accused 1, Babu Ram Gupta, attended from Lucknow and the other accused were represented by Mr. Jagdish Prasad their advocate. The complainant failed to attend and he tendered a medical certificate in the following terms:
Jagdish Narain Bajpai is suffering from fever with dysentery and would take about a week for his recovery. (Sd.) G.R. Mullick, M.B., B.S.
13. On this there was an application made on behalf of the accused that the fees of the Civil Surgeon would be supplied by them if the Court would direct the Civil Surgeon of Benares to visit the complainant in Benares and see whether he was fit to attend Court. The Civil Surgeon Lt.-Col. Vaidya did visit the complainant and sent a long report to the Court. In that report he states that the complainant whom he saw at 1-55 P.M. that day complained of pain in his stomach and fever and said that the pain was very severe and was still continuing and that he was having five or six loose stools a day since the 25th August and from the 29th August nine or ten loose stools a day. The Civil Surgeon then applied the usual method of examination of the abdomen and stated:
The abdomen is soft. There is no rigidity or tenderness. Deep pressure was applied when the patient was talking and he did not wince with pain.
14. It is perfectly clear from this report on this point that there was no pain in the abdomen such as the complainant alleged. As regards the fever the Civil Surgeon reported:
The body does not feel warm to show that there is anything like fever. He says he had fever till 10 A.M.
15. That is, the alleged fever which was preventing him from attending Court that day miraculously stopped before the Civil Surgeon arrived. The report further proceeds that:
He says he was being treated by Dr. Malik since 29th morning. He gave him some medicine.... He cannot show the prescription nor the bottle of medicine prescribed by Dr. Malik.
16. It is clear therefore that the evidence of treatment by Dr. Malik was not forthcoming. In spite of the fact that the complainant said he was passing eight or ten loose stools a day the Civil Surgeon states: "He says he will not be able to pass any stools." It was the passing of these loose stools which was the reason alleged why he did not come to Court, but when the Civil Surgeon examined him he said that no stools were available or would be available. The first question asked by the Court was "How long has he been ill?" and the reply of the Civil Surgeon is: "I am unable to say how long has he been ill or if he has been ill at all." The second question was: "Is the patient able to come to Court?" and the answer was: "The patient did not look seriously ill," and the third reply was: "The present condition did not appear to me to be serious." It appears clear to me that the complainant was not at all ill and that he had other reasons for not desiring to attend Court. In any case no explanation is given as to why the complainant did not produce any other witnesses. Even if he himself had been unable to attend there was no reason why witnesses should not have been produced and why he desired the case to be postponed without any evidence being recorded. On this report of the Civil Surgeon the Magistrate passed the following order:
From the report of the Civil Surgeon it appears that complainant's condition is not serious. He had no fever at the time he was examined. Besides he had no colic pain in the opinion of the Civil Surgeon. To me it appears that the application is calculated to harass the accused who have to come to Benares from Bombay after incurring heavy expenditure on each hearing. I order the Complainant to pay Rs. 100 as cost to the accused. The next date is fixed 15th October 1989. The complainant is ordered to bring all his witnesses and the documents upon which he relies.
(Sd.) Abdul Bari, 31-8-39.
17. This is the order which is the subject of the criminal reference in question. Even the Sessions Judge who refers this case states:
On a careful consideration of the Civil Surgeon's report it does appear to me that Jagdish Narain Bajpai was not so ill as not to be able to come to Court.... He sent this certificate merely to avoid the production of evidence on that day.
18. The reason why this matter was referred by the Sessions Judge is because he thought that the order for the accused to appear by pleader was not legal otherwise he says he would not have referred this matter of costs. Some argument was made that the costs of Rs. 100 was excessive. But these costs had to cover several matters. One was the fee of the Civil Surgeon, another was the fee of the advocate for the accused, the third was the cost of Babu Ram Gupta coming on that day from Lucknow. In view of these matters I do not think that the Rs. 100 was excessive. For these reasons I refuse both these references of the learned Sessions Judge and I direct that the record be returned to the Magistrate through the Sessions Judge.