S. K. SAHOO, J.

None appears on behalf of the petitioner as well as opposite party.

The petitioner Sri Benjamin Roul has filed this application under section 482 of the Criminal Procedure Code challenging the impugned order dated 19.06.2007 passed by the learned Sub-divisional Judicial Magistrate (Sadar), Cuttack in I.C.C. Case No.1065 of 2006 in rejecting the petition under section 205 Cr.P.C. filed by the petitioner to dispense with his personal attendance.

2. On the basis of the complaint petition filed by the opposite party Sajal Das, cognizance of offence under section 406 of the Indian Penal Code was taken and process was issued against the petitioner by the learned S.D.J.M. (Sadar), Cuttack. The allegation against the petitioner is that while discharging his duty as treasurer, secretary and auditor of Oriya Baptist Church, Cuttack situated at Mission Road, Cuttack in between 1991 to 2000, he had misappropriated a sum of Rs.3,37,358.75 (rupees three lakhs thirty seven thousand three hundred fifty eight and seventy five paisa).

3. On being summoned, the petitioner filed an application under section 205 of Cr.P.C. before the learned S.D.J.M. (Sadar), Cuttack through his advocate with a prayer to dispense with his personal appearance mainly on the ground that he was aged about 68 years and he is a respectable senior citizen of the Christian Community and he was the retired Oath Commissioner-cum-Stamp Reporter in the Board of Revenue and he was the elected General Secretary of the highest body of the Baptist Church of the State and he was also the elected Deacon of the Cuttack Oriya Baptist Church for last fifteen years.

4. The opposite party filed his objection to the said application and the learned S.D.J.M. (Sadar), Cuttack vide impugned order dated 19.06.2007 has been pleased to hold that the petitioner is residing at Sutahat in Cuttack which is hardly five kilometers away from the Court and he can taken resort to section 317 of Cr.P.C. after his first appearance before the Court. Considering the nature and gravity of the accusation and the manner and circumstances under which the petitioner committed the offence, the petition under section 205 of Cr.P.C. was rejected.

5. On the basis of the affidavit which was sworn at the time of filing of this application under section 482 Cr.P.C. in the year 2007, the age of the petitioner was indicated to be 68 years and therefore, at present he is 78 years. There is also no dispute that the offence under section 406 of the Indian Penal Code is triable by Magistrate and carrying maximum punishment upto three years or with fine or with both.

6. Section 205 Cr.P.C. deals with the power of a Magistrate to dispense with personal attendance of accused. Sub-section (1) states that at the time of issuance of summons under section 204 Cr.P.C., if the Magistrate thinks that the personal attendance of the accused is not necessary, he may dispense with such personal attendance and permit him to appear by his pleader. In the case of Kamaljeet Singh Ahluwalia -Vrs.-State of Orissa reported in Vol. 85 (1998) Cuttack Law Times 372, this Court after considering the scope and object of section 205 of Cr.P.C. summarized as follows:-

“(i) personal appearance of the accused in a criminal trial is the normal rule and exempting from personal appearance is an exception which can be resorted to in suitable cases by due exercise of judicial discretion;

(ii) when the alleged offences involves moral turpitude, relates to grievous offences or prescribes considerable length of substantive sentences, the Court exercising the discretion shall take the total fact and circumstances into consideration and through a speaking and reasonable order exercise the discretion judiciously;

(iii) no hard and fast rule or a strait-jacket formula can be prescribed as to where exemption shall be granted and when it is to be refused. It all depends upon the facts and attendant circumstances and the wisdom of the Court;

(iv) when there is no