The discretion of the court to exempt an accused from personal appearance under Section 205 of the Cr.P.C, considering the nature of the case and the conduct of the accused.

JUDGMENT

Bibek Chaudhuri, J. - The petitioner is impleaded as an accused in complaint Case No.INS 1 of 2020 under Section 236 of the Insolvency and Bankruptcy Code (IBC) alleging commission of offence by him and other accused persons punishable under Section 70(1)(b) read with Sections 19(1) and 34(3) of the IBC. The said complaint is pending before the Trial Judge, 2nd Special Court, Calcutta for trial and disposal.

2. In the said proceeding filed by the Deputy General Manager, Insolvency and Bankruptcy Board of India, the petitioner filed an application under Section 205 of the Code of Criminal Procedure for exempting him from personally appearing before the trial court on each and every date of the said criminal proceeding on 9th March, 2021. Subsequently, on 31st March, 2022 he filed a supplemental application to the original application under Section 205 of the Cr.P.C annexing certain documents in support of his prayer.

3. It would not be out of place to mention that the aforesaid complaint was filed against three other accused persons. Remaining accused persons also prayed for exemption of personal appearance during trial on various grounds stated in their respective applications.

4. Briefly it is stated by the petitioner that the petitioner lives with his wife and three minor daughters and old, ailing parents. In order to protect the old parents and minor children the petitioner avoids exposure and crowded place in the light of the current pandemic. If the petitioner is compelled to regularly attend the court he may be exposed to dreaded virus which may in turn affect the health of his parents and children. Secondly, the petitioner is extensively involved in philanthropic activities. Thirdly, the petitioner is working as a Managing Director of a company which deals with industrial boilers. Very often defects are located in such industrial boilers in the form of developing cracks perforation etc. In order to repair the boilers conventionally, those are to be cooled down. Then after repairing the boilers are needed to be ignited and then after a considerable time the boilers attain their requisite temporary for their functioning. The petitioner's company as the scientific and technological no how for repairing of boilers without turning them off for this specialized job and he requires to visit almost regularly to the factories and industries not only inside the country but also abroad. If he be not personally exempted, there would be huge loss in industrial sector. Fourthly, he is honourary office bearer and member of various business organizations, like CII, AIMA, FICCI etc. He also attains meetings and programmes of the said organizations. The petitioner also undertook that he would not challenge his identity in any stage of trial: an Advocate on his behalf would be present before the trial on each and every occasion whenever the case is taken up in his absence: the petitioner would not dispute any evidence recorded in his absence by the trial court in presence of his learned Advocate and he would be present on any day when his presence is required by the trial court.

5. By an order dated 19th May, 2022 the learned trial judge came to a finding that during the span of December, 2021 to August, 2022, the petitioner attended four meetings of various business organizations and two of such meetings were conducted through virtual mode. The learned trial judge also noticed that the office of the petitioner is situated at Kolkata therefore, he was pleased to reject petitioner's application for dispensing with personal appearance and directed him to remain present personally during trial of the case.

6. Mr. Sandipan Ganguly, learned Senior Counsel on behalf of the petitioner submits that Section 205 of the Cr.P.C makes it clear that in appropriate cases the Magistrate can allow an accused to make even the first appearance through a counsel. It is the foremost duty of the trial court to try a criminal case at the earliest, examine th