The court's discretion in dispensing with the personal attendance of an accused under Section 205 of the Code of Criminal Procedure, 1973, and the factors to be considered while exercising such discretion.

ARIJIT PASAYAT, J.

( 1 ) SINCE a common point relating to propriety of orders passed by learned Judicial Magistrate First Class, Banpur dispensing with personal attendance of opp. party accused u/s. 205 of the Code of Criminal Procedure, 1973 (in short the 'code') is involved, both cases are taken up together and this judgment will govern them. Fact situation is almost identical in both the cases.

( 2 ) IN Criminal Revision No. 170 of 1989 order dated 21-1-1989 in I. CC Case No. 27 of 1988 is impugned; whereas in Criminal Revision No. 501 of 1989 order dated 12-6-1989 in I. CC Case No. 46 of 1988 is impugned. Both the cases were instituted on the basis of complaint filed by present petitioner. Cognizance u/s. 420/294 of the Indian Penal Code (in short the 'ipc') in the former, and u/s. 379, IPC in the latter case has been taken. On receipt of summons, accused-opposite party prayed for dispensing with his personal attendance and to permit appearance by his pleader. It was inter alia stated in the applications that he is Manager of a Nationalised Bank, and was required to be present in office for transacting various banking activities in such capacity and was required to attend to several time bound programs of the Government. in the matter of extending facilities to applicants for financial assistance. The reasons found favour with the learned Magistrate, and while dispensing with personal attendance, accused-opposite party was permitted to be represented by his Advocate. In both the cases similar orders were passed, which have been assailed.

( 3 ) MAIN plank of argument of learned counsel for petitioner is that accused would not have been prejudiced had he personally appeared in court and, therefore, learned Magistrate was not justified in dispensing with his personal attendance. Learned counsel for opp. party, however, submits that power u/s. 205 of the Code has been judicially exercised and there being no perversity in the orders impugned, there is no scope for interference while exercising revisional jurisdiction.

( 4 ) FOR resolution of dispute, a conspectus of S. 205 of the Code is necessary. It empowers a Magistrate, whenever he issues a summons, to dispense with personal attendance of accused and permit him to appear by a Pleader. Term 'pleader' is defined in S. 2 (a) of the Code. According to said definition, 'pleader' when used with reference to any proceeding in any Court means a person authorised by or under any law for the time being in force, to practice in such Court and includes any other person appointed with permission of the Court to act in such proceeding. Both sections 205 (1) and 273 of the Code provide for exemption of an accused from personal attendance; but they refer to different stages of the proceedings. While S. 205 deals with initial appearance of accused before the Magistrate who issues summons, S. 273 deals with presence of accused at trial and empowers the Presiding Officer to dispense with personal attendance of accused at trial. As words "if he sees reason so to do" indicate power conferred by Sec. 205 (1) is discretionary, and no hard and fast rule can be laid down. The question as to when such discretion has to be exercised has to be considered after giving due consideration in the attendant circumstances. No sweeping generalisation can be made. Courts should be generous in exempting accused persons from personal appearance. Such appearance is the rule in criminal cases of a serious nature, involving moral turpitude, and punishable with imprisonment for some length of time. Court should consider the nature of aberration alleged, prima facie material for acceptance of such allegation, possibility of mala fide allegation, prejudice if any likely to be caused if personal attendance is not made. Court has to weigh inconvenience likely to be caused to accused if he is required to be absent from his vacation, profession, trade, occupation and calling for attendance in Court, against prejudice l