The Magistrate has the discretion to insist on the first appearance of the accused under Section 205(2) CrPC, but this discretion must be exercised judicially and with reference to the contentions raised in the application. In appropriate cases, the Magistrate can allow an accused to make even the first appearance through a counsel.

KALIDAS MUKHERJEE, J.

1. THIS is an application under Section 397/401 of the Code of Criminal Procedure assailing the order dated May 4, 2010 passed by the learned Judicial Magistrate, 6th Court, Alipore in connection with the complaint case No. AC-3361/2009 wherein the learned Magistrate was pleased to direct the petitioner to appear personally before the Court without adjudicating the application under Section 205 of the Code of Criminal Procedure.

2. The complainant filed the case against the accused for the commission of the alleged offence under Sections 427, 114, 506(II) and 447 of the Indian Penal Code. After the filing of the case the learned Court issued summons under Sections 427 and 453 of the Indian Penal Code as stated in paragraph 4 of the application. In pursuance thereof the accused filed an application under Section 205 Cr.P.C. praying for dispensing with his personal appearance in Court.

It is the contention of the petitioner that he is a business man and the Managing Director of M/S. Gee Pee Infotech Pvt. Ltd. which deals in manufacturing of mobile phones and accessories and exports their goods to various parts of India and abroad. In connection with such business the petitioner has to travel in different parts of India as well as abroad. It has been contended in the application that it would cause much hardship to him to attend the learned Court on each and every occasion in connection with the present case. In the application it has also been stated that (a) An Advocate on his behalf would be present in the Learned Court whenever the case is taken up in his absence. (b) The petitioner is not disputing his identity as the petitioner/accused in this case. (c) The petitioner will not dispute any evidence recorded in his absence by the learned Court but recorded in the presence of his learned Advocate. (d) The petitioner would be present on any day when his presence is required by the learned Court. With this averment the accused/petitioner filed an application under Section 205 Cr.P.C. before the learned Court below.

3. LEARNED Counsel appearing for the petitioner submits that the alleged offences are triable by summons procedure and the learned Magistrate without considering the merits of the application under Section 205 Cr.P.C. directed the petitioner to make his first appearance before the Court. It is contended that the relief prayed for in the said application has been negated by the order impugned and such direction for first appearance keeping the application pending cannot be made. It is submitted that the learned Magistrate has the discretion, but, such discretionary power has not been exercised, in as much as, the application under Section 205 Cr.P.C. was not heard on merits. It is submitted that the matter may be sent back to the learned Court below with the direction to hear out the application under Section 205 Cr.P.C. without insisting on the first appearance of the accused before the Court.

4. The learned Counsel appearing for the O.P. No. 2 submits that in the application under Section 205 Cr.P.C. the accused has made an undertaking to appear before the Court as and when such direction may be made by the learned Court. It is contended that the learned Magistrate has the discretionary power to make any order for the appearance of the accused at any stage of the proceeding.

The learned Counsel appearing for the State submits that there is no perversity, illegality or absurdity in the impugned order passed by the learned Magistrate. It is contended that the learned Magistrate has the jurisdiction to insist on the first appearance of the accused under sub- Section 2 of Section 205 Cr.P.C. to appear at any stage of the proceeding. It is contended that there is no scope to interfere with the impugned order.

5. The learned Magistrate by order dated 04.5.2010 observed that the personal appearance of the accused was required first and then the hearing of the petition under Section 205 Cr.P.C. wi