IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1292 of 2008 KUNWAR KANHAIYA Versus STATE OF BIHAR & ANR ----------- For the petitioner: - Sri K.N.Chaubey, Sr Advocate & Mukesh Kumar, advocate. For opp party:- Sri M. Kumar, advocate. For the State:- Sri A Salam., advocate. 4 16.03.2009 Heard learned counsel for the parties. 2. The instant application is directed against order dated 22.10.2008, whereby application of petitioner under section 205 Cr.P.C. has been rejected by the learned Judicial Magistrate, Ist Class in Compliant case no. 472C/2000 filed by opp party no.2 under sections 406, 420,120B of the I.P.C. against four accused persons. Accused no.1 is M/S Antodaya Developers Pvt. Ltd., accused nose 2 and 3 are Directors of the Company, whereby accused no.4, the petitioner is Project Manager of Reliance Mobile Company who looks after all the projects and operation of towers in both the States. His office in Bihar is situated at Biscomaun Tower, Gandhi Maidan, Patna. 3. M/S Reliance Communications Ltd authorized M/S Antodaya Developers Pvt. Ltd. At Dakbunglow Road, Patna to construct towers at Rafiganj site circle in the district of Aurangabad. In turn, M/s Antodya Developers Pvt Ltd handed over the contract work to opp party no.2. It has been further said that at the time of giving of contract, accused no.4, the petitioner was also present. It is further alleged that though complainant completed the contractual work but his payment was withheld. He suspects that all the accused - 2 - persons in conspiracy of each other have withheld the payment of the complainant. After due enquiry learned magistrate took cognizance of the offence and summoned the accused persons including the petitioner to face trial. The petitioner thereafter appeared through his lawyer and prayed to dispense with his personal appearance in terms of section 205 Cr.P.C. learned magistrate rejected 205 Cr.P.C. application on the ground that office of the petitioner is situated within a radius of one kilometer of the court premises. 4. It is submitted on behalf of the petitioner that order passed by learned magistrate is in violation of laws laid down on this subject as rendered in case of Ram Harsh Das Vs State of Bihar, reported in 1998(1) PLJR 504 as well as in case of K.J.Tiwari and others versus the State of Bihar and another reported in 2001(2) PCCR 277 and Abhay Kumar Singh versus the State of Bihar and another, reported in 2006(3) PLJR 126. He further submits that in petty case, the court should be liberal in granting exemption and may not exercise the discretion in a case of serious nature including offence involving moral turpitude, rape, murder etc. 5. Having heard the parties and going through the materials on record, I am of the view that order dated 22.10.2008, passed by the learned Magistrate is not sustainable in the eye of law, as learned magistrate while rejecting the application has not taken into consideration the relevant fact for adjudicating the petition under section 205 Cr.P.C. Furthermore, he has rejected the petition only considering the fact that his office is situated within radius of one - 3 - kilometer of court premises and not the nature of work which is to be performed by the petitioner in discharge of his role as Project manager in Reliance Communications Ltd. The petitioner is required as asserted to tour extensively in Bihar and Jharkhand for supervising tower construction work of the Company. As such, impugned order dated 22.10.2008 is set aside and the learned magistrate is directed to allow the petitioner to be represented through lawyer in terms of section 205 Cr.P.C. 6. The petitioner undertakes that his lawyer would represent him regularly on dates fixed by the court below. 7. This court further observes that the learned magistrate would expedite the disposal of trial, and conclude the same at the earliest, preferably within nine months from the date of receipt of the order. The writ petition is allowed in the aforesaid terms. Shashi. (S.P.Singh,J).