IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.37118 of 2007 ANAND PRASAD Versus STATE OF BIHAR & ANR ----------- Anand Prasad, Son of late Dr. Ambika Prasad, Resident of 3/27Q, Vishwashhand, Gomti Nagar, Lucknow in the state of Uttar Pradesh. ……. Petitioner Versus 1. The State of Bihar 2. Farukh Ahmad, Son of M.Q.Ahmad Resident of Sapna Apartment, Flat No. M/04, P.S. Pir Bahore, District Patna …. Opp. Parties ------ For the Petitioners : Mr. Ashutosh Kumar, Advocate For the State : Mr. Jharkhandi Aupadhaya, A.P.P. For O.P. No. 2 : Mr. S.Asfaque Ahmad, Advocate O R D E R The petitioner arrayed as one of the accused in Complaint Cae no, 1194 (C) of 2006 has prayed for quashing of the order dated 30.3.2007 passed therein by Sri Prem Chand Anal, Judicial Magistrate, 1st Class, Patna, whereby he has refused the prayer of the petitioner to dispense with his personal attendance in the case under section 205 Cr.P.C. The petitioner along with others is facing charges for commission of offence under section 407 IPC on the basis of cognizance taken by the learned Magistrate vide order dated 24.8.2006 which prescribes for a punishment of imprisonment of either description for a term which may extend to 7 years and also makes him liable to fine. 2 From the impugned order it appears that the prayer for exemption from personal appearance has been rejected only because cognizance had been taken against the accused including the petitioner under section 407 IPC and notwithstanding issuance of summons the accused persons had not appeared in Court. Sub Section (1) of Section 205 Cr.P.C. undoubtedly gives a discretion to the Magistrate issuing a summons to decide as to whether the accused should appear in person or should be permitted to appear through a lawyer but this discretion must be judicially exercised. As observed by the Supreme Court in Bhaskar Industry Ltd. Vs. Shiwani Denim & Apparels Ltd. Reported in (2001) 7 SCC 401, the Magistrate in appropriate cases can allow an accused to make even the first appearance through a counsel. At the same time, the appearance through pleader should be allowed unless the personal attendance of the accused is necessary in the interest of justice. In technical cases not involving any moral turpitude the Court should invariably exempt the accused from personal attendance where the accused happens to be a busy business people, industrialists, ladies, old, and sickly persons, factory workers and labourers etc. In the aforesaid background let us examine if the court below was justified in rejecting the prayer of the petitioner. The petitioner claims to be the partner of Ananya Travels & Cargo with headquarters at Lucknow and they were appointed as C & F Agent in Air Sahara for Lucknow and Patna with the responsibility 3 to accept the cargo on behalf of the customer and to give it to the Terminal Manager of Air Sahara at Patna and in the instant case the cargo which was given to the C & F Agent by the complainant was duly handed over to the Terminal Manager, Air Sahara which transported it to Delhi and from there to Lucknow and according to him unless the goods were delivered at the Lucknow office the petitioner could not have handed it over or sent it to the destination. It was further submitted that in his role as a partner of the firm he was required to move to different parts of the country which made it difficult for him to appear on every date fixed in the case. One fails to understand the rationality behind the learned Magistrate’s insistence upon the presence of the petitioner in Court more so when the case rests primarily upon documentary evidence and when an undertaking had been given that he would be present in court as and when directed by the court and had also given an undertaking that he would never dispute the identity or have any objection in receiving all evidence in his absence. In the situation stated above I am unable to uphold the impugned order and do set aside the same. In the result the application is allowed. Patna High Court, Patna. Dated : The 13th of April , 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)