The main legal point established in the judgment is that the magistrate has the discretion to dispense with the personal attendance of the accused and may impose conditions for allowing the accused not to appear in court personally, based on reasons.

Shorn of all details not necessary for this Criminal Miscellaneous Case, the question raised is whether a magistrate has jurisdiction to impose conditions while granting permission to an accused to appear through counsel dispensing with his personal appearance.

2. On a complaint filed by one Jayabhanu alleging that her husband, the petitioner herein, committed the offence of bigamy (S.494 of the Indian Penal Code), the magistrate took cognizance of the offence and issued process to him. As the petitioner is in a Gulf country, the complainant prayed for adopting steps

for cancellation of his passport. At that stage a petition was filed by a counsel representing the petitioner praying for exempting him from personal appearance in court by permitting him to appear through counsel.

3. While dealing with his application, learned magistrate took into account. another fact i.e., a sum of more than fifty thousand rupees is due from the petitioner tohis wife and child as arrears of maintenance allowance fixed by the magistrate in earlier proceedings. There seems to be no dispute on that fact. So, the magistrate passed the order purportedly under S.205 of the Code of Criminal Procedure (for short the Code') allowing the petitioner to appear through counsel "if he is paying the outstanding liability amounting to Rs. 50,370/- to the complainant within 45 days and on executing a bond for his appearance as and when required by the court, with two solvent sureties each for Rs. 25,000/-". In this petition, petitioner contends that the magistrate has no jurisdiction to impose such conditions while passing an order under S.205 of the Code. So, he prays for deletion of such conditions.

4. It is not necessary for me to consider whether S.205 of the Code could have been invoked at the present stage of the case since petitioner has no such challenge. That apart, it was on a petition filed by the petitioner seeking the court's indulgence to invoke powers under S.205 of the Code that the magistrate passed the impugned order.

5. S.205 of the Code reads thus:

"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".

6. Process is issued to an accused in a criminal case for securing his attendance in the court. The normal rule is that an accused should be present in court personally when his case is taken up. S.273 of the Code says that except as otherwise expressly provided, all evidence in the course of the trial or other proceedings shall be taken in the presence of the accused, or, when his personal attendance is dispensed with, in the presence of his pleader. S.317 of the Code confers powers on the court to dispense with the presence of an accused "for reasons to be recorded, if he is represented by a pleader". S.205 of the Code is a further extension of this power to be exercised when the accused did not initially enter appearance. Under both provisions court is empowered to grant a special convenience to an accused not to appear personally and to appear through his counsel. Thus, in criminal cases personal appearance is a rule and appearance through counsel (without personal appearance ) is the exception. When the exception is resorted to either under S.205 or under S.317 of the Code, court must have reasons so to do. Though it is not imperative that the court must record reasons under S.205 of the Code to dispense with personal appearance, it is imperative that the court must record reasons under S.317 of the Code. Eventhough it is the general rule that accused must be personally present in court during evidence, courts should