IMPORTANT POINT
Exemption from personal appearance – Accused can make his appearance before Trial Court through his Advocate and personal appearance of accused is not necessary unless compelled as contemplated under Sub-Section (2) of Section 205 of Cr.P.C.

JUDGMENT (ORAL)

The instant revision is directed against an order, dated 3rd of January, 2019, passed by the learned Judicial Magistrate, 1st Class at Muzffarpur in Complaint Case No.2186 of 2018 (Tr. No. 3435 of 2018).

2. By passing order, impugned, the learned Magistrate rejected an application filed by the accused/petitioners under Section 205 of the Cr.P.C praying for exemption of their personal appearance during inquiry and trial. The learned Magistrate assigned the following reasons while rejecting the petition under

3. Section 205 of the Cr.P.C.:—

(i) The learned Magistrate took cognizance of offence under Sections 406, 420 and 468 of the IPC, the offences are serious in nature and non-bailable;

(ii) So far as petition under Section 205 Cr.P.C is concerned, physical appearance of the accused in a Criminal Trial is the general rule and exemption from personal attendance is an exception.

4. On the above mentioned two grounds, the petition under Section 205 of the Cr.P.C was considered and rejected by the learned Magistrate.

5. Assailing the said order, it is submitted by the learned Advocate for the petitioners that by executing a power of attorney, the petitioners executed a power of attorney in favour of one Md. Saiyad Zahid Hussain, in respect of the properties of the petitioners. The aforesaid Md. Saiyad Zahid Hussian took certain money from the complainant as a part consideration of sale of the subject property with a promise to execute a registered deed of sale in favour of the complainant on receipt of the entire consideration money.

6. On 26th of December, 2013, earnest money was accepted. However, the petitioners cancelled the said power of attorney on 16th of December, 2013. For execution of an agreement for sale illegally the petitioners lodged complaint before the Muzaffarpur Town PS being FIR Case No. 592 of 2014 against the said Md. Saiyad Zahid Hussain & Ors. under Sections 406, 420, 466, 468, 471 and 120B of the IPC.

7. The instant complaint case was lodged against the petitioners subsequently by the intending purchaser of the property in question against the petitioners.

8. It is contended on behalf of the petitioners that the petitioners are permanent residents of Delhi and it is not possible for the petitioners to attend the Court at Muzaffarpur regularly on the dates of trial. Therefore, the petitioners filed the aforesaid application under Section 205 of the Cr.P.C, but the learned Magistrate rejected the application on certain grounds which are not acceptable under the law.

9. In support of the contention, the learned Advocate for the petitioners has placed reliance on a decision of this Court in Manish Gai (in both) vs. State of Bihar (in both) reported in 2007 (1) PLJR 822. The learned Advocate for the petitioners has specifically relied on paragraphs 8, 9 and 10 of the aforementioned decision. The relevant paragraphs are quoted below:—

“8. It has now been settled by series of decisions of this Court and the Apex Court that where specially a person residing out of the place where the trial is being conducted, by virtue of his business or otherwise is busy cannot continuously appear every fifteen days or every month he should be exempted from appearance before the trial Court till such time his personal appearance is necessary.

9. I may clarify that there Is no impediment for the trial Court to continue in absence of an accused person because if he has been exempted on his own application under Section 205, Cr. P.C. then evidence recorded in presence of his lawyer but in his absence cannot be challenged as wrongly recorded. That evidence would bind the accused notwithstanding it having been recorded in his absence (see Shantanu Das v. State. 2000 (3) PLJR 134).

10. In my view what the Courts have to see is whether absence of the petitioner would delay the trial in any manner or prejudice the trial in any manner and not otherwise.”

10. Section 205 of the Cr.P.C runs thus:—

“205. Magistrate ma