IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.45905 of 2005 VIKAS GOEL, SON OF SHRI VED PRAKASH GOEL, RESIDENT OF 2ND MAIN CKC GARDEN, MISSON ROAD, BANGALORE. ………………………………………………………………..PETITIONER. Versus 1. THE STATE OF BIHAR. 2. HANUMAN SINGH ALIAS RAM CHANDRA SINGH, SON OF LATE PHULAN SINGH , RESIDENT OF MOHALLA BEUR, SHREE KRISHNA VIHAR COLONY, P.S. PHULWARISHARIFF, DISTRICT- PATNA. …………………………………………………OPPOSITE PARTIES. ----------- For the Petitioner : M/s. S.D. Sanjay and Akash Chaturvedi, Advocates. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : None. ------------ O R D E R 4. 18.3.2009. The petitioner who alongwith others has been arrayed as accused in Complaint Case No.570(C) of 2005 and against whom cognizance for commission of offences punishable under Sections 418 and 420 I.P.C. has been taken has prayed for the quashing of the order dated 7.10.2005 passed therein by Sri S.P. Mishra, Judicial Magistrate, First Class, Patna, whereby he has rejected the petition filed by the petitioner for exemption from his personal appearance under Section 205 Cr.P.C. One Hanuman Singh alias Ram Chandra Singh, the complainant, impleaded herein as O.P. No.2, who though duly served with notice has chosen not to appear and contest the instant application, had filed the complaint stating inter alia, that whereas he - 2 - was the owner of two trucks which he used to employ as Public Carriers, accused no.2, the petitioner was the Director of accused no.1, M/s. Road Transport Corporation and accused no.3 was the Manager of the Patna Branch of accused no.1. It is alleged that the trucks of the complainant were used by the accused persons for transportation of goods on assurance that the freight charges would be paid on production of challan. It is further alleged that when the complainant asked for payment of Rs.80,000/- towards freight charges the accused persons avoided paying on one pretext or the other which made the complainant apprehend that the accused had no intention to make the payment. It is submitted on behalf of the petitioner that he being one of the partners of accused no.1, M/s. Road Transport Corporation (hereinafter referred to as “the Corporation”) which has its Head Office at Bangalore where the petitioner resides and by virtue of his supervisory nature of work at the Head Office is totally unconcerned with the day to day affairs of the Corporation’s branch offices. Having learnt about the case he filed a petition under Section 205 Cr.P.C. seeking exemption from personal appearance but the same was rejected by the impugned order. It appears from perusal of the impugned order that the reason for rejection of the prayer by the impugned order was that “ I am of the view that benefit of Section 205 Cr.P.C. should be given to sick man, pardanashin women or a person enjoying such a public post that his personal attendance cannot be without affecting a public - 3 - duty”. He was also of the view that apart from stating that they were busy persons no cogent reasons had been assigned for exemption from personal appearance. The submission on behalf of the petitioner is that he is a busy person who has to move to different places in connection with his work/duties and as such it is not possible for him to appear on each and every date in the trial court. It is well settled by now that the power conferred under Section 205 Cr.P.C. is purely discretionary and no hard and fast rule can be laid down nor sweeping generalization can be made. In the circumstances what the court is required to consider are the allegations, the facts and circumstances and the position of the person and also whether any prejudice shall be caused to the prosecution if the personal attendance is dispensed with. The court is also required to consider that the harassment is not out of proportion to the seriousness of the allegations. It is also well settled that where a person not accused of having indulged in any criminal act in his individual capacity makes prayer for exemption, the court should liberally construe the provisions of Section 205(1) Cr.P.C. In the instant case, the petitioner is being prosecuted as Director/Partner of a firm and had not indulged in any criminal act in his individual capacity. That apart the offences alleged are not of a very serious nature and involves money transaction. In the circumstances it would be in the interest of justice to confer the benefit of Section 205 Cr.P.C. upon the petitioner but on the condition - 4 - that he shall make personal appearance whenever directed by the court. In the result, the application is allowed and the impugned order, so far as the petitioner is concerned, is set aside. P.S. (Abhijit Sinha,J)