JUDGMENT

R.K. Dash, J. - The petitioner is an Officer of State Police Administration and is now posted as Officer-in-charge of Orpada Police Station. The Opp. party filed a complaint against him before the SDJM, Nilgiri which was registered as I.C.C. No. 48 of 1995. The learned Magistrate after conducting enquiry under Sec. 202, Cr.P.c. took cognizance of the offence under Sees. 294 and 506, IPC and issued summons to the petitioner for his appearance. In response to the summons the petitioner entered appearance through his counsel and filed a petition under Sec. 205, Cr.P.C. praying to dispense with his personal attendance. The learned Magistrate relying upon a decision of this Court in the case of Kamaprased Rout and others v. Madan Mohan Das1, rejected the said prayer. Feeling aggrieved, the petitioner has approached this Court by filing the present application under Sec. 482, Cr.P.C. challenging the said order.

2. Since the question for determination revolves round the scope and power of the Magistrate to dispense with accused's personal attendance under Sec. 205, Cr.P.C. It is desirable to refer the same which reads as under:

"205. Magistrate may dispense with personal attendance of accused:

(1) Whenever a Magistrate issues a summons, he may, if he sees reasons 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 proceeding, direct the personal attendance of the accused, and if necessary, enforce such attendance in the manner hereinbefore provided."

A plain reading of sub-sec. (1) of Sec. 205, Cr.P.C. clearly indicates that a Magistrate while issuing summons has discretion to dispense with personal attendance of the accused and permit him to appear through his advocate. In a catena of decisions this Court has held that the discretion so vested in the Court should be exercised judiciously and where the Court declines to exercise his jurisdiction in favour of the accused, he must assign good reasons. A reference in this context may be made to the case of Pitambar Das and 2 others v. Gobinda Chandra, Satpathy2. In that case the prayer of the accused persons was rejected by the Court below on the ground that they had not entered appearance even for once. On approach being made, this Court set aside the said order and consequently allowed the prayer observing as follows:

"The grounds on which that petition was dismissed are certainly not good and convincing grounds for rejecting such prayer. In a matter of this nature it is obligatory on the part of the Magistrate to indicate convincing reason for refusing toe prayer for representation by lawyer as in this case."

(Emphasis supplied).

The aforesaid view was followed in a latter decision in the case of Smt. Savitri Sahuani and another v. Maguni Sahu3. In the present case, the decision in Kama Prasad's case (supra) relied upon by the learned Magistrate does not run contrary to what has been observed in earlier two decisions. In 'Kama Prasad' the offence alleged against the accused persons was one punishable under Sec. 494, IPC So, considering the nature and the gravity of the offence, the Court held that the learned Magistrate was justified in rejecting the prayer for representation of the accused persons under Sec. 205, Cr. P.C. The relevant observation of the Court necessary for the purpose is reproduced hereunder:

"Personal appearance of an accused is the rule in criminal cases of a serious nature, involving moral turpitude and punishable with imprisonment for some length of time. On the other hand, where the offence is punishable with fine only, and involves no moral turpitude the exemption should be the rule"

The learned Magistrate in the present case when relied upon the aforesaid decisions, should have considered the observation extracted above and allowed the petitioner's prayer dispensing with his personal appearance. Adde