The main legal point established in the judgment is the judicious exercise of discretion by the Magistrate in granting exemption from personal appearance under Sec. 205 of the Code of Criminal Procedure.

1. The brief facts for disposal of this petition are that the applicant No.2. Dr. Manwendra Kumar filed a complaint vide Complaint Case No. 1786 (c)/2001 before the learned Chief Judicial Magistrate. Patna, inter alia, pleading that the complainant is a Member of the Indian Medical Association (in short the IMAJ. the present applicant Dr. Prem Agrawal was working as Secretary General for the year 1999-2000. In the year 2000 on behalf of the IMA he arranged a function called ACADIMA-2000 at Delhi. The entry fee and representative fee was fixed; Dr. Prem Agrawal was authorised to collect the funds and spend the same in accordance with the requirement. The allegations are that Dr. Prem Agrawal collected almost about One crore rupees and did not account for the same. After completion of the event a Fact. Finding Committee was constituted which found that Dr. Prem Agrawal had misappropriated a sum of Rs. 40 lacs etc. The learned Chief Judicial Magistrate took cognizance of the complaint and transferred the case to the court of Sri. P.N. Sharma. Judicial Magistrate 1 st Class. Patna.

2. The complainant and his witnesses were examined before the transferee court. After hearing the party the learned Magistrate came to the conclusion that the complaint was devoid of merits no offence appears to have been committed and accordingly he dismissed the complaint on 3.12.2001. Being aggrieved by the said dismissal the complainant took the matter to the Sessions Court in Criminal Revision No. 945/2001. The matter was heard by the learned Sessions Judge. Patna who in the exparte proceedings set aside the order passed by the learned Magistrate 1st Class and remitted the matter to the trial Court with the direction that the Magistrate shall proceed in the matter in accordance with law, in the matter of putting the accused on trial. It appears that thereafter the Magistrate feeling himself bound by the orders passed in the Criminal Revision ordered issuance of summons against the present applicant. It appears from the records that an application was made by the present applicant under Sec. 205 of the Code of Criminal Procedure seeking exemption from personal appearance. The grounds on which the application was projected were that the applicant is a renowned Doctor and he himself had undergone an operation in the month of February. 2002 and even in absence of the accused the evidence can be recorded the trial can be continued therefore the presence of the accused petitioner be dispensed with. The application was opposed by the original complainant, who placing reliance upon the judgment of this Court Ram Harsh Das V/s. State of Bihar and others, submitted before the trial court that the applicant was not entitled to exemption. After hearing both the parties the learned trial court directed that the applicant should appear before the trial Court within five days and if he does not appear then the Court shall issue non-bailable warrant of arrest to secure attendance of the applicant. On 19.4.1992 itself an application for grant of time was submitted so that the order passed by the court below may be challenged. The applicant thereafter filed this petition on 24.4.2002.

3. Learned counsel for the applicant submitted that Sec. 205 of the Code of Criminal Procedure would apply with full force and as the accused is neither disputing his identity nor is making any further submission that evidence cannot be recorded in his absence the application should have been allowed. It is further contended that the reliance placed by the learned court below on the judgment in the matter of Ram Harsh Das (supra) was misplaced. It is contended that Sec. 205 of the Code though gives a discretion to the learned Magistrate but in fact it provides a right in favour of the accused to make an application and seek exemption from the personal attendance.

4. Contending contrary to the aforesaid arguments. learned counsel for the respondent No.2 contended that the judgme