IMPORTANT POINT
Magistrate may dispense with personal attendance of accused if he thinks it is reasonable to do so at his discretion – Such discretion can be exercises in rare cases under certain circumstances where it seems reasonable – Reasons substitute subjectivity by objectivity.

ORDER

By means of this application the Petitioner seeks indulgence of this Court, praying to set aside the impugned order dated 12.09.2023 passed by the learned S.D.J.M., Deogarh in I.C.C. No.7 of 2023 under Annexure-4, wherein the learned Court declined to allow the petition filed by the Petitioner U/s.205, Cr.P.C. praying for dispensing with his personal appearance before the court and to allow him to be represented by his lawyer.

2. Perusal of the case record reveals that pursuant to the protest petition, the court having conducted enquiry u/s.202, Cr.P.C. found prima facie material and took cognizance of the offence under Sections 341/294/506, I.P.C. against the Petitioner and issued process for his appearance. The Petitioner having represented by his Advocate moved a petition under Section 205, Cr.P.C. However, he did not press the petition filed initially and moved a petition subsequently afresh. Learned Court vide order dated 12.09.2023 declined the prayer of the petitioner and directed the petitioner to appear on 18.09.2023.

3. It is submitted by the learned counsel that the Petitioner is a Doctor by profession and is aged about 73 years. According to the learned counsel, having regard to the nature of the offence alleged against the Petitioner being not grave in nature and the Petitioner’s identity being not in dispute, the personal appearance of the accused-petitioner could very well be dispensed with by allowing him to be represented through his Advocate and that the petitioner would undertake to appear as and when so required by the Court for the trial or disposal of the case.

4. Section 205 of the code stipulates as follows:—

“Magistrate may dispense with personal attendance of accused:—(1) whenever a Magistrate issues 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.

(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”

5. The Apex Court in Puneet Dalmia vs Central Bureau of Investigation MANU/SC/1747/2019 held as follows:—

“In the case of Bhaskar Industries Ltd. (supra), this Court has observed that if a Court is satisfied that in the interest of justice the personal attendance of an accused before it need not be insisted on, then the court has the power to dispense with the attendance of the accused. It is further observed by this Court in the aforesaid decision that if a court feels that insisting on the personal attendance of an accused in a peculiar case would be too harsh on account of a variety of reasons, the court can grant relief to such an accused in the matter of facing the prosecution proceedings. It is observed and held by this Court in the aforesaid decision that the normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused, such evidence can be taken but then his counsel must be present in the court, provided he has been granted exemption from attending the court. In Paragraphs 14, 17, 18 and 19, this Court has observed and held as under:—

“14. The normal rule is that the evidence shall be taken in the presence of the accused. However, even in the absence of the accused such evidence can be taken but then his counsel must be present in the court, provided he has been granted exemption from attending the court. The concern of the criminal court should primarily be the administration of criminal justice. For that purpose the proceedings of the court in the case should register progress. Presence of the accused in the court is not for marking his attendance just for the sake of seeing him in the court. It is to enable the court to proceed with the trial. If the progress of the trial can be achieved even in the absence of the accused the court can certainly take