SOUMENDNA KUMAR BISWAS Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE five petitioners who alongwith another have been impleaded as accused in Complaint Case No. 1853(C) of 2002 are aggrieved by order dated 12.5.2005 passed therein by Sri M.K. Singh, Judicial Magistrate, 1st Class, Patna, whereby he has rejected their petition to dispense with their personal attendance in court and allow them to appear through their Advocate under Section 205 Cr.P.C. and have prayed for the quashing of the same. An additional prayer has been made for quashing of order dated 29.10.2005 passed by the learned 12th Additional Sessions Judge, Patna, in Criminal Revision No. 375 of 2005, whereby he has dismissed the revision preferred by the petitioners against the order dated 12.5.2005 passed by the learned Judicial Magistrate.

(2.) EXERCISE of power under Section 205 Cr.P.C. is discretionary and is to be considered in a reasonable manner and no hard and fast rule can be laid down therefor. Such discretion is to be exercised judiciously, judicially and not in arbitrary, fanciful or whimsical manner. While dealing with an application in terms of Section 205 Cr.P.C. the Court has to consider whether any useful purpose would be served by requiring the personal attendance of the accused or whether progress of the trial is likely to be hampered on account of his absence. If the Magistrate finds that insistence on personal attendance of accused would inflict enormous suffering or tribulations on accused and the comparative advantage would be less, the Magistrate may dispense with his personal attendance. Therefore, the only requirement of law is that when a Magistrate issues a summons, if he sees reasons so to do, he may dispense with the personal attendance of the accused. In the instant case, some of the petitioners had retired whereas some others had left the employment of the company or had ceased to hold office. Even the complainant had filed a petition in court on 21.9.2004 stating therein that she had come to know after institution of the complaint case that the petitioners were not responsible to the Company and that other persons were responsible therefor and had made prayer for dropping the case against the petitioners since she was not interested in prosecuting the same against these petitioners. However, notwithstanding the same the learned Magistrate without appreciating the facts mechanically dismissed the prayer for exemption and the Revisional Court had followed suit.

(3.) DUE regard being had to the facts and the circumstances of the case and considering the submissions advanced on behalf of the petitioners, I am of the opinion that both the learned Magistrate as also the Revisional Court had erred in rejecting the prayer of the petitioners.