Exemptions from personal appearance under Section 205 Cr.P.C. can be granted at any stage, provided there is an undertaking that counsel will represent the accused, ensuring fair trial progress.

JUDGMENT :

Arun Kumar Singh Deshwal, J.

1. Heard Sri Kavindra Singh, learned counsel for the applicant, Sri Purushottam Mani Tripathi, learned counsel for the opposite party no.2 as well as Sri Padmakar Rai, learned A.G.A. for the State and perused the record.

2. The instant application under Section 482 Cr.P.C. has been filed for quashing the order dated 07.08.2024 passed by the Additional Court, Varanasi in Complaint Case No. 151/2021 ( M/s Narain Sarees Vs. M/s M.S.H. Sarees Pvt. Ltd. ) under Sections 138 N.I. Act, P.S. Chowk, District Varanasi and direct the opposite party no.2 to appear before the court below personally although order dated 23.04.2024 passed by this Hon'ble Court in Criminal Revision No.905/2024 clearly shows O.P. No.2 has not exempted for his personal appearance before the court below.

3. The sole contention of learned counsel for the applicant is that the court below while allowing the application of the opposite party no.2 under Section 205 Cr.P.C. failed to consider that for the purpose of recording statement under Section 251 Cr.P.C. the presence of the accused is necessary. It is further submitted by learned counsel for the applicant that the applicant against the rejection of discharge application has approached this Court through Application U/S 482 No.905 of 2023, which was dismissed with liberty to the applicant to appear before the court below but the opposite party no.2 instead of appearing before the court below moved an application under Section 205 Cr.P.C. to permit him to appear through his counsel. It is lastly submitted that the impugned order is absolutely cryptic and no reason for allowing the same.

4. Per contra, learned counsel for the opposite party no.2 has vehemently opposed the prayer made by learned counsel for the applicant and submitted that the Apex Court in the case of Sharif Ahmad and others Vs. State of U.P. and others in Criminal Appeal No. 2357 of 2024, has observed that even before applying for bail, the personal appearance under Section 205 Cr.P.C. cam be exempted. It is further submitted by counsel for the applicant that in the case of Bhaskar Industries Limited Vs. Bhiwani Denim and Apparels Ltd. and others , (2001) 7 SCC 401 , in which Apex Court has observed in paragraph nos.16 and 17 that in the proceeding under Section 138 N.I. Act, Court can grant exemption from personal appearance under Section 205 Cr.P.C. even for recording his plea under Section 251 Cr.P.C. provided the accused undertakes before the Court that his counsel will make such plea on behalf of the accused and also undertakes that he will not dispute his identity as the particular accused in case and he will not have any objection in taking evidence in his absence. It is further submitted by learned counsel for the opposite party no.2 that the Apex Court in the case of T.G.N. Kumar Vs. State of Kerala and others , (2011) 2 SCC 772 , has observed that it is the discretion of Magistrate to allow application under Section 205 Cr.P.C. as the concerned Magistrate is Master of the Cort so as to progress of the trial is concerned. Learned A.G.A. has also adopted the arguments of learned counsel for the opposite party no.2.

5. The Apex Court in the case of Sharif Ahmad and others Vs. State of U.P. and others , in paragraph no.47 has observed that even before applying for bail, application under Section 205 Cr.P.C. can be allowed by the court concerned considering the special fact of the circumstances. Paragraph No.47 of Sharif Ahmad (supra) is being quoted as under:-

"47. Further, the observation that there is no provision for