The discretionary power of the magistrate to dispense with the personal appearance of an accused under Section 205, Cr. P. C. is to be applied in exceptional cases rather than a rule, considering the nature of the allegations and the conduct of the accused.

S. J. MUKHOPADHAYA, J.

( 1 ) THIS application has been preferred by the petitioners for quashing the order dated 21st July, 2003, passed by Sri sanjeev Jha, learned Judicial Magistrate 1st class. Ranchi, in Case NOC-III268 of 2002, which was registered for the offences under sections 22 and 22 (A) of the Minimum wages Act, 1948. By the aforesaid order, the learned Judicial Magistrate, 1st Class, ranchi, rejected the application, preferred by the petitioners under Section 205 of the code of Criminal Procedure (in short "cr. P. C. ") to dispense with their personal appearance and to allow them to be represented through their lawyer during trial.

( 2 ) IT appears that a case has been filed by opposite party No. 2, Labour Superintendent, ranchi, against one M/s. Advance diagnostic Central, Bariyatu, and these two petitioners as Its Director and Manager. It has been alleged that on 22nd June, 2002 at about 12. 10 p. m. an inspection of the establishment of M/s. Diagnostic Center, bariyatu, was made and during course of such Inspection, it was found that the required statutory forms and documents have not been maintained. On demand, the employee of M/s. Advance Diagnostic Centre, bariyatu, could not produce the records for inspection, in violation of the statutory rules, constituting offences punishable under Sections 22 and 22 (A) of the Minimum Wages Act, 1948.

( 3 ) THE complainant filed the complaint petition after taking sanction from the competent authority. It was prayed that since the complainant is a public servant, his day to day personal appearance in the Court be dispensed with. The learned Chief Judicial magistrate on the basis of the prosecution report dated 20th Nov. 2002 took cognizance of the offences under Sections 22 and 22 (A) of the Minimum Wages Act, 1948, transferred the case to the Court of learned Judicial Magistrate for trial and ordered to issue summons against the accused. The petitioners having come to know about the same, filed an application under Section 205, Cr. P. C. to dispense with their personal appearance. Petitioner No. 1 took plea that he is a busy doctor whereas petitioner No. 2 took plea that he is busy businessman and remains outside most of the time and thereby it is difficult for him to attend the court on day to day trial. It is also pleaded that if personal appearance is not dispensed with, it will not only cause great inconvenience, harassment as well as prejudice to petitioner No. 1 but it will also cause harassment to the patients, who every day come from outside for treatment. The petitioners undertook to appear physically, if required by the learned Court below, as and when found necessary.

( 4 ) THE learned Court below by the impugned order dated 21st July, 2003 held that the personal appearance under Section 205, Cr. P. C. is to be applied in exceptional cases rather than a Rule. The Court further held that after cognizance of the offence is taken and summonses have been issued, it would not be in conformity with the spirit of the fundamental principle of legal jurisprudence to give benefit to dispense with the appearance.

( 5 ) ADMITTEDLY, there is no hard and fast rule to dispense with the personal appearance of an accused under Section 205, cr. P. C. It is within the direction of the Magistrate to grant exemption or dispense with the personal attendance of the accused, as held by the Supreme Court in the case of bhaskar Industries Ltd. v. Bhiwani Denim and Apparels Ltd. reported in (2001) 7 SCC 401 : (2001 Cri LJ 4250 ).

( 6 ) A Division Bench of Patna High Court in the case of Ram Harsh Das v. State of bihar, reported in 1998 (1) Pat LR 495, while appreciating the provisions under Section 205, Cr. P. C. observed as follows :"49. The power referred to in Section 205 (1) of the Code is discretionary. Even in cases, where the provision is applicable , the magistrate has to consider the question of dispensing with the personal appearance in reasonable manner. No hard an