The Magistrate's discretion under Section 205(1) of the Criminal Procedure Code to dispense with the personal attendance of the accused must be exercised judicially, considering the circumstances of each case and providing reasons for the decision.

SANKAR BHATTACHARYYA, J. N. HORE

( 1 ) THE petitioners in this Rule are co-owners of premises No. 155, Netaji Subhash Avenue, Serampore. Sometime in 1981, they submitted to the Serampore Municipality for sanction a plan for carrying out certain additions and alterations in respect of the said building and the plan was duly sanctioned.

( 2 ) IN September, 1981, however, the Chairman of the Municipality informed petitioner No. 1 in writing that an enquiry would be held in connection with the building plan sanctioned by the Municipality. Accordingly, an enquiry was held and the report submitted disclosed certain deviations from the sanctioned plan.

( 3 ) THEREAFTER, petitioner No. 1 received a letter from the Chairman of the Municipality asking him to explain why certain portions of the building, as mentioned in the letter, would not be demolished. Pursuant to the said letter petitioner No. 1 sent an explanation raising certain objections therein but, ignoring the explanation, a complaint under Section 501 of the Bengal Municipal Act, 1932 ('act' for short) was lodged against the petitioners in the court of the learned Sub-Divisional Judicial Magistrate, Serampore. The learned Sub-Divisional Judicial Magistrate took cognizance on the basis of the complaint and issued summonses for appearance of the petitioners.

( 4 ) AFTER service of summons, petitioners Nos. 3, 4, and 6 filed before the learned Sub-Divisional Judicial Magistrate a joint petition under Section 205 (1 ). Criminal Procedure Code, praying for exemption from personal attendance on the ground that they are Pardanashin ladies and the prayers were allowed. Later on, petitioner No. 5 filed a similar petition praying for exemption from personal attendance and her prayer was also allowed.

( 5 ) AFTER summons was served upon petitioner No. 2 Biswanath Chakraborty he too, filed a petition praying for exemption from personal attendance on the ground that he is a member of the West Bengal High Judicial Service and has to perform important public duties for which. it might not he possible for him to attend court on the dates fixed. The learned Sub-Divisional Judicial Magistrate Sri P. K. Basu Mallick did not, however, pass any final order ort the petition, observing that the petition would be considered only after the personal appearance of petitioner No. 2 and by his order dated 15-6-83. fixed 19-7-83 for the purpose. Thereafter, the petitioners moved this Court to revision and obtained the present Rule for quashing the impugned proceedings against them in case No. C/130 of 1982 under Section 501 of the Act and for setting aside the order dated 15-6-83 referred to above.

( 6 ) MR. Roy, learned Advocate appearing in support of the Rule, submits at the very outset that he will not press the prayer for quashing of the impugned proceedings and will confine himself only to the impugned order dated 15-6-83 whereby petitioner No. 2 was directed to appear personally in court on 19-7-83. In view of the above submission of Mr. Roy, the only point that falls for our determination is whether the learned Sub-Divisional Judicial Magistrate was justified in directing petitioner No. 2 to appear personally in court.

( 7 ) SUB-SECTION (1) of Section 205 of the Code of Criminal Procedure which deals with the subject under consideration, reads as under :"205. Magistrate may dispense with personal attendance of accused.- (1) Whenever a Magistrate issues a summons, he may, if the sees reason so to do dispense with the personal attendance of the accused and permit him to appear by his pleader. "

( 8 ) SUB-SECTION (1) undoubtedly gives a discretion to the Magistrate issuing a summons to decide as to whether the accused should appear in person or' should be permitted to appear through a lawyer but the discretion must be judicially exercised. The Magistrate is to see whether there is any justification for refusing the accused a prayer for exemption from personal attendance and must indicate convi

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