The court emphasized that the discretion of the court should be exercised judiciously while considering an application for exemption under Section 205 of the Code, and personal appearance should only be insisted upon if necessary for the disposal of the case.

ASHWANI KUMAR SINGH, J.

1. By the present application filed under section 482 of the Code of Criminal Procedure, the petitioners seek setting aside of the order dated 27th July, 2012 passed by the learned Judicial Magistrate 1st Class, Patna in Complaint Case No. 2340 (C) of 2010, whereby an application filed under Section 205 of the Code of Criminal Procedure (hereinafter referred to as the Code) for exemption from personal appearance of the petitioners has been rejected.

2. Mr. N.K. Agrawal, learned senior counsel appearing on behalf of the petitioners has submitted that the learned Magistrate has erred in law while passing the impugned order. The petitioners are officers of a Company incorporated under the Indian Companies Act, 1956. They are busy businessmen. They reside at a far off place in Lucknow (U.P.) The case is not of serious nature and it would be extremely difficult for them to appear in person on each and every date in course of trial. He has further submitted that on a careful perusal of the allegations made in the complaint, it would appear that the ingredients of the offences for which cognizance has been taken are not attracted. The dispute between the parties is purely of civil nature and the complainant ought to have filed a civil suit for recovery of the amount in question. He has submitted that the criminal prosecution of the petitioners is malicious in nature and has been brought to tarnish the image of the petitioners. It has also been submitted that the learned Magistrate has failed to consider that the prosecution is only at the stage of issuance of summons and not at the stage of trial. Learned Magistrate has also failed to appreciate the judgments of the Hon’ble Supreme Court in the case of Bhaskar Industries Ltd. vs. Bhiwani Denim & Apparels Ltd. & Others, (2001) 7 SCC 401 and S.V. Mazumdar & Others vs. Gujarat State Fertilizer Co. Ltd. & Another, (2005) 4 SCC 173.

3. On the other hand, learned counsel for the State has contested the matter. He has justified the order passed by the learned Magistrate. He has submitted that the power conferred on the Magistrate under section 205 of the Code is discretionary one and no one can claim exemption from personal appearance as a matter of right. He has submitted that the learned Magistrate has taken cognizance of the offences punishable under sections 406 and 420 of the Indian Penal Code and there is allegation against the petitioners that they had cheated the complainant. He has further submitted that while rejecting the application filed on behalf of the petitioners, learned Magistrate has observed that in case of exigency the petitioners may file an application under section 317 of the Code for their exemption from appearance in Court.

4. Regard being had to the rival submissions made on behalf of the parties, I think it appropriate to take into consideration section 205 of the Code, 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 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 proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided.”

5. A bare perusal of section 205 of the Code would make it clear that while considering an application under section 205 of the Code, the learned Magistrate has a discretion under this section that he may dispense with the personal attendance of the accused bearing in mind the nature of case as also conduct of the person summoned.

6. In Bhaskar Industries Ltd. (supra), the Hon’ble Supreme Court observed as follows:-

“17. Thus, in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel. The Magistrate is empowered to record