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2004 Supreme(Cal) 219
High Court Of Calcutta
P. N. SINHA
SUNIL JHUNJHUNWALA - Appellant
Versus
STATE OF WEST BENGAL - Respondent
C. R. R. 2486 Of 2003
Decided On : 03/24/2004
R.P.BHATTACHARJI, SUBIR GANGULY
Accused representation under Section 205 of the Criminal Procedure Code before the first appearance in court, with the requirement of a written undertaking not to challenge identity.
Headnote:
Section 205 - Criminal Procedure Code - Accused Representation - The accused may be permitted to be represented under Section 205 of the Criminal Procedure Code by any learned advocate before the first appearance in court, as established in the case of Bhaskar Industries Ltd. v. Bhiwani Denim Apparels Ltd. The accused must submit a written undertaking not to challenge identity, and the trial will proceed in their absence.
Fact of the Case:
The petitioner sought exemption from personal appearance under Section 205 of the Criminal Procedure Code after the learned Magistrate took cognizance of the offence and issued process against the petitioner and others.
Finding of the Court:
The court found that the accused may be represented under Section 205 of the Criminal Procedure Code before the first appearance in court, citing the case of Bhaskar Industries Ltd. v. Bhiwani Denim Apparels Ltd. The court directed the learned Chief Metropolitan Magistrate to allow the petitioner's prayer for representation under Section 205 without first appearance.
Issues: Exemption from personal appearance under Section 205 of the Criminal Procedure Code.
Ratio Decidendi: The accused may be represented under Section 205 of the Criminal Procedure Code before the first appearance in court, and must submit a written undertaking not to challenge identity, allowing the trial to proceed in their absence.
Final Decision: The revisional application was disposed of with the direction to allow the petitioner's prayer for representation under Section 205 of the Criminal Procedure Code without first appearance.
( 1 ) THIS revisional application is directed against order dated November 6, 2003, passed by the learned Chief Metropolitan Magistrate, calcutta, in Case No. C/5015/2003 thereby refusing the prayer of the petitioner for exemption from personal appearance under section 205 of the Criminal Procedure Code.
( 2 ) HEARD learned advocate for the petitioner as well as learned advocate for the state. It appears that the learned Magistrate by order, dated August 25, 2003 took cognizance of the offence under Section 85 (a) (i) (a) of the e. S. I. Act and issued process against the petitioner and others. On November 6, 2003 an application under Section 205 of the Criminal procedure Code was filed before the learned magistrate but the learned Magistrate kept that petition pending and directed that the said application would be heard after their personal appearance.
( 3 ) I am of the opinion that in case of this nature, the accused can be permitted to be represented under Section 205 of the Criminal procedure Code before first appearance in court. The Supreme Court has made it clear in the case of Bhaskar Industries Ltd. v. Bhiwani denim Apparels Ltd. and others reported in air 2001 SC 3625 : 2001 (7) SCC 401. I am of the opinion that in this case the accused petitioner may be permitted to be represented under Section 205 of the Criminal Procedure code by any learned advocate who would represent him in the Court below. The accused will submit a written undertaking before the learned Court that he will not challenge the identity and the trial will proceed in his absence.
( 4 ) ACCORDINGLY, I dispose of this revisional application by directing the learned chief Metropolitan Magistrate, Calcutta, to allow the prayer of the petitioner for representation under Section 205 of the criminal Procedure Code without first appearance before him.
( 5 ) CRIMINAL Section is directed to send a copy of this order to the learned Chief metropolitan Magistrate, Calcutta, by special messenger at the cost of the petitioner to be deposited by tomorrow.
( 6 ) REVISIONAL application disposed of with direction.
