N AGARWAL Vs. STATE OF W B

JUDGEMENT

(1.) as the points involved in these three revisional applications are identical and same and as all the three revisional applications arose out of the order, dated February 9, 2004, passed by the learned Chief Metropolitan Magistrate (hereinafter called the CMM), Calcutta in Case No. C of 5035 of 2003, I intend to dispose of these three revisional applications by common judgment and order.

(2.) Facts of the case giving rise to these three revisional applications are as follows: Complaint Case No. C of 5035 of 2003, was started on the basis of complaint lodged by Sri Mangal Bhattacharya, Insurance Inspector, West Bengal, on September 18, 2003, before the learned CMM against the petitioners including the companies namely Delta Ltd., alleging inter alia that the accused persons had failed to pay employer's share of contribution under the ESI Scheme in respect of the employees working in the said factory covering the period from April 2003 to May 2003 and the petitioners and the company thereby contravened the provisions of E.S.I. Act and are liable to be prosecuted under Section 85(a) of the Employees' State Insurance Act, 1948. Learned Magistrate by order, dated September 18, 2003, took cognizance of offence on the basis of the complaint and issued summons to the accused persons. After receiving summons the petitioners appeared through their learned advocate before the learned Magistrate on February 9, 2004 and filed application under Section 205 of the Code of Criminal Procedure (hereinafter called the Code) praying for exemption of their personal attendance. The learned Magistrate by order, dated February 9, 2004, allowed representation of the company under Section 205 of the Code and rejected the prayer under Section 205 of the Code in respect of accused Nos. 3 and 4 namely Sri N. Agarwal and Sri S.K. Chokhoni and allowed the application under Section 205 of the Code of accused No.2 Sri S.K. Jhunjhunwala for three months as he sustained fracture in his right hand. Challenging the order, dated February 9, 2004, passed by the learned CMM the accused No. 3 Sri N. Agarwal has preferred the Criminal Revisional Application No. 525 of 2004, the accused No. 4, Sri S.K. Chokhoni has preferred Criminal Revisional Application No. 526 of 2004 and accused No. 2 S.K. Jhunjhunwala has preferred Criminal Application No. 527 of 2004. :

(3.) Learned advocate for the petitioner in all the three revisional applications contended that the learned Magistrate failed to apply judicial mind and the order passed by him is bad in law. The instant case is based solely on documentary evidence and, therefore, presence of petitioner on all the dates during trial is not necessary. Learned Magistrate erred in law and failed to realise true spirit and perspective of the provisions of Section 205 of the Code. He contended that a Division Bench of this Court in 1988 C. Cr. L.R. (Cal) 221, Ajit Kumar Chakraborty v. Sreerrampore Municipality observed that there is nothing in sub-section (1) of Section 205 of the Code to give even the remotest indication that in order to claim exemption from personal attendance the accused must, at the first instance, appear personally in Court. Recently, the Supreme Court in Bhaskar Industries, Ltd. v. Bhiwani Denim and Apparels Ltd. reported in AIR 2001 SC 3625 : 2001 (7) SCC 401 has observed that in appropriate cases the learned Magistrate can allow an accused to make even the first appearance through a counsel. The Magistrate is empowered to record plea of the accused even when his counsel makes such plea on behalf of the accused in a case where personal appearance of the accused is dispensed with. Therefore, in the instant case under Section 85(a) of the E. S. I. Act which is based solely on documentary evidence, the accused petitioners, who were (sic) busy businessmen should be permitted to be represented under Section 205 of the Code and their personal appearance may be exempted even appearance before Court for the first time.