IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1372 of 2008 ASHOK MATHUR Son of Sri K.B.Mathur, Escorts Finance Ltd., N-6, Pratap Building, Cannaught Place, New Delhi ----------------------- petitioner Versus 1. THE STATE OF BIHAR 2. Manju Rani Sinha, D/o Prof. R.K.Sinha, resident of Satyam, Vasant Vihar Colony, Boring Road, P.S.- S.K.Puri, District- Patna. ------------------- Opp.Parties. ----------- For the petitioner : Mr. R.K.Singh, and Rana Pratap Singh, Advocates. For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party no.2 : None ----------- O R D E R 3 25-11-2008 The petitioner, a Senior Executive of M/S Escorts Finance Ltd. ( hereinafter referred to as “ the Company”) at its head office in Delhi, who has been arrayed as one of the accused in Complaint Case no.3660 ( C) of 2005, has prayed for the quashing of the order dated 8.8.2006 passed therein by the learned Sub Divisional Judicial Magistrate, Patna , whereby he has rejected the privilege of Section 205 Cr.P.C. to the petitioner and the subsequent order dated 27.7.2007 passed by the learned Sessions Judge, Patna in Cr.Reviion no.910 of 2006, whereby he has upheld the order dated 8.8.2006 . It is submitted that the petitioner at present is the Vice- President (Finance) in the aforesaid Company and a busy executive who has to travel across the country as also abroad frequently in connection with the business of the Company and as he has nothing to do with the day-to–day affairs of the Company in his financial capacity he is not fastened with liability to pay to any depositor of - 2 - the Company. In such a situation, it was submitted, there was no necessity of the petitioner’s presence in court on each and every date fixed in the case. It is now well settled by a catena of decisions both of the Apex Court and this Court that while considering a petition filed under Section 205 Cr.P.C. that though the power in the court is discretionary no hard and fast rule can be laid down nor sweeping generalization be made; what the court should consider are the allegations , facts and circumstances and position of the person as also whether any prejudice shall be caused to the prosecution if the personal attendance is dispensed with. The court is also required to see that the harassment caused to the person by such appearance in the court is not out of proportion to the seriousness of the allegations. In the instant case, the complainant had deposited money in cumulative deposit scheme of the Company for a period of 12 months and one day, for which she was entitled to an annual interest @ 8.5 % per annum, but as she fell in urgent need of money she requested for a pre-mature withdrawal of the money in the fixed deposit which the officials of the Company did not permit and as a result thereof the complainant apart from suffering mental and physical harassment had incurred financial loss of Rs.1.50 Lacs. It was her claim that the accused Company and its officials had indulged in corrupt practice and had cheated her by not returning her money even after the date of maturity. Admittedly, the petitioner resides in New Delhi and by - 3 - virtue of his office has to undertake professional trips in connection with the business of the Company. Admittedly also he is not responsible for the non-payment of the dues of the complainant. No gainful purpose would be served by asking him to be present on all dates. On the contrary, any such order would amount to an unnecessary harassment of the petitioner. Even otherwise in any trial, the requirement of the attendance of the accused is only while framing of charge, recording of evidence, recording of the statements under Section 313 Cr.P.C. and on the date of Judgment. Section 205 Cr.P.C. confers power on the Magistrate to dispense with the personal attendance of the accused permitting him to appear through pleader not only in summons trial case but even in cases where warrants have been issued. Therefore, where the counsel for the accused is present in court that should be no difficulty with counsel for the accused to take the plea of guilty or not guilty and even in matters under Section 313 Cr.P.C. an accused can be examined in his absence through his counsel who is representing him under Section 205 Cr.P.C. Having given my anxious consideration to the facts and circumstances of the case, the impugned orders of both the courts below are hereby set aside and the application is allowed. NKS/- ( Abhijit Sinha, J)