The main legal point established is that the discretion provided under Sec. 205, Cr.P.C. should be exercised considering the necessity of personal appearance for the trial and the potential impact on the progress of the trial.

1. Heard learned counsel for the petitioner and learned A.P.P.

2. By these applications orders dated 29-5-2006 passed by Sub-Divisional Judicial Magistrate, Patna, in Case No. 11(M) of 2006 and Case No. 46(M) of 2006, refusing the privilege u/s. 205, Cr.P.C., has been challenged.

3. The petitioner is the Managing Direetor of M/s. Ajay Food Products, Katni, Private Limited Company incorporated under the provision of Companies Act, 1956. He resides at Katni in the State of Madhya Pradesh from where he conducts the business on behalf of the company. Certain food items were found allegedly adulterated for which a prosecution was instituted for violation of the provisions of Prevention of Food Adulteration Act. The petitioner on coming to know of the proceedings filed an application before the trial Court for exemption from appearingiin person in terms of Sec. 205, Cr. P.C. The ground for filing such an application was that the petitioner is a busy businessman residing at Katni in the State of Madhya Pradesh and it will cause him undue harassment to physically appear on each and every date in the trial Court. He undertook to appear as and when Court would order for his personal appearance, which was necessary for the trial Court, still the same was rejected by the impugned order on four grounds, i) warrant of arrest had already been issued against the petitioner; (ii) petitioner was not a Pardanashin lady; (iii) petitioner was not a busy person engaged in law and order and (iv) petitioner could as and when avail of Sec. 317, Cr. P.C.

4. I am afraid none of the grounds, as given above, is lawfully Justifiable ground to refuse the prayer as contemplated under Sec. 205, Cr. P.C.

5. To say the least it appears that the learned SDJM has failed to exercise its jurisdiction which was vested in him under Sec. 205, Cr. P.C. This Court in the case of Ram Harsh Das V/s. State of Bihar since reported in 1998 (1) PLJR 502 has held that application of Sec. 205, Cr. P.C. does not end by issuance of warrant of arrest if at the first instance summons were issued. To my mind law has not changed since then. If summons are issued at the first instance and subsequently warrant of arrest is Issued even in such a situation the benefit of Sec. 205. Cr. P.C. is available. The Magistrate was clearly wrong in his notion of law.

6. The second and third grounds are equally misconceived as no such alternative is found in Sec. 205. Cr. P.C. Law nowhere states that benefit of Sec. 205, Cr. P.C. can only be given to Pardanashin lady or people engaged in law and order. I failed to understand from where the Magistrate has borrowed these grounds which the legislature did not provide. Coming to the last ground that Sec. 317, Cr. P.C. would be available as and when necessary is equally misconceived. The provisions of Sec. 205, Cr. P.C and Sec. 317, Cr. P.C. are two different provisions. They have been engrafted by the legislature knowing full well the existence of each other provision. If what the Magistrate say is correct then Section 205, Cr. P.C. would be rendered otiose.

7. Sec. 205, Cr. P.C. gave a discretion to the Court to exempt a person from personal appearance till such time his personal appearance was necessary for the trial whereas Sec. 317, Cr. P.C. is a provision, where, on any particular day where accused is required to be present in person. He is unable to come or appear, he may seek leave and be absent and for this he is to move to the Court u/s. 317, Cr. P.C. In operation both the sections are different and distinct.

8. The legislature contemplated speedy trial and as such in past rarely occasion had arisen for people to seek exemption from personal appearance. Now-a-days criminal trial are notoriously slow. It takes five (years) or decade for a trial to conclude, if Courts were to insist that on each and every date i.e. virtually every fifteen days an accused must appear from Katni in the State of Madhya Pradesh to Patna and attend his Court