IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43755 of 2006 MD.TAMANNA & ORS Versus STATE OF BIHAR & ANR ----------- 4 14.8.2008 Heard Sri Nawal Kishore Singh, the learned counsel for the petitioners, Sri S. Alamdar Hussain, learned counsel for O.P. No.2 and Sri A.H.M. Rahman, the learned A.P.P. for the State. Six of the accused of Complaint Case No. 283 of 2003 have prayed for the quashing of order dated 17.6.2005 passed by Sri Rajkishore Pandey, Judicial Magistrate, 1st Class, Jehanabad, whereby he refused the application of the petitioners under section 205 Cr.P.C. and the consequential order dated 29.8.2006 passed by the learned Presiding Judge, Fast Track Court No. III, Jehanabad, in Cr. Revision No. 56 of 2005 / 01 of 2006, whereby while not interfering with the order of the learned Magistrate he has left it open for fresh consideration. One Mustari Khatoon filed the aforesaid complaint impleading the six petitioners and two others for alleged commission of offence under sections 323, 406, 498A I.P.C. in between the period 10.5.2003 to the date of filing i.e. 15.5.2003. It appears that after due inquiry under section 202 Cr.P.C. the learned Magistrate found a prima facie case under section 323 and 498A I.P.C. to have been made out against six petitioners - 2 - only and did not summon the other two to face the trial. The petitioners filed a petition under section 205 Cr.P.C. praying for their personal attendance to be dispensed with and to permit them to appear through their Pleader on the ground that some of the accused were ladies and others were of old age or daily wage earners engaged at places out side the State. However, the same did not find favour with the Court who rejected the same and the criminal revision filed there against did not give any relief to the petitioners. It is an admitted fact that notwithstanding the rejection of their petition under section 205 Cr.P.C. as far as back on 17.2.2005 and disposal of their revision as far back as on 29.8.2006 but prior to stay granted by this Court by order dated 3.1.2007 the petitioners did not care to appear in the court below. As a matter of fact they did not even crave for bail and continued to abstain from appearing in Court. It is true that section 205 Cr.P.C. confers a right upon the accused to make an application and convince the Magistrate that in a case where summons have been issued an order dispensing with the personal attendance of the accused may be passed. No hard and fast rule can be made nor a straight jacket formula can be provided as to under what circumstances the Magistrate shall exercise his powers under - 3 - section 205 Cr.P.C. Such discretion is to be exercised judiciously and not in an arbitrary, fanciful and whimsical manner. It has to be borne in mind that while dealing with an application in terms of section 205 Cr.P.C. the Court has to consider whether any useful purpose would be served by requiring the personal attendance of the accused or whether progress of the trial is likely to be hampered on account of his absence. Where the trial has not even commenced, the requirement of the accused persons being present in Court is neither warranted nor desirable. The court is also required to see whether undue hardship would be caused to the accused by their attendance in court on the date fixed even though the trial has commenced. In the instant case the trial had not commenced but the accused persons by their aberration had chosen not to appear before the trial court although an order to that effect had been passed and their prayer for dispensation with their personal appearance had been rejected by the two courts below. In the aforesaid circumstances it is hereby directed that the petitioners shall surrender before the court below and on their such surrender and making a fresh prayer for dispensing with their personal attendance from Court by filing a petition under section 205 Cr.P.C. the Court in seisin of the - 4 - case shall consider the desirability of the physical presence of the petitioners in Court on each and every date. When the petitioners have furnished an undertaking that they will be represented by their lawyer there should be no impediment before the court in allowing such prayer for dispensing with the personal attendance of the petitioners specially when some of them are women and others are either old or daily wage earners living outside the State. With the aforesaid observation this application is disposed of. Spd/- (Abhijit Sinha, J.)