IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 9.07.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.OP.No.26830/2006 1.M.Sundaram 2.M.Dhanabalan Petitioners Vs State by Inspector of Police B4 Race Course Police Station Coimbatore Respondent Prayer:- This Criminal Original Petition is filed to call upon the entire records in CMP.No.8523/2005 in CC.No.279/2003 on the file of the learned Judicial Magistrate III, Coimbatore and set aside the order dated 22.8.2006 passed by the learned Judicial Magistrate III, Coimbatore in CMP.No.8523/2005 in CC.No.279/2003. For Petitioner : Mr.V.Kannadasan For Respondent : Mr.Senthil Murugan for PP ORDER This Criminal Original Petition is filed to set aside the order passed by the learned Judicial Magistrate III, Coimbatore in CMP.No.8523/2005 in CC.No.279/2003, dated 22.8.2006, refusing to dispense with the personal appearance of the Petitioners. 2. The case of the Prosecution is that the Petitioners are the step brothers of the complainant Doriswamy and on 27.12.1980, the complainant along with his father Muthuswamy, his step mother Saraswathi entered into a deed of partnership for running a business under the name and style of M/s.Hotel Sri Thevar and in pursuance of the said deed of partnership, the complainant has entrusted a sum of Rs.35,000/- by way of share of contribution towards capital. While so, the Petitioners without the consent of the complainant entered into another partnership deed on 1.7.1981, thereby dishonestly concealed and removed the legitimate share of the complainant and thereby committed the offence under Sections 406, 418, 424, 477 of IPC. https://hcservices.ecourts.gov.in/hcservices/ 3. It is submitted by the Petitioner that the 1st Petitioner is suffering from heart ailment and had undergone bypass surgery and therefore, he was unable to appear before the Magistrate Court for every hearing. As regards the 2nd Petitioner, he is looking after multifarious business such as running of the hotel at Coimbatore and it requires constant travel and personal involvement. On the above said grounds, the Petitioners have filed a petition to dispense with their personal appearance under Section 205 of Code of Criminal Procedure. The learned Magistrate has dismissed the petition on the ground that already a petition under Section 205 of Code of Criminal Procedure filed by them had been dismissed on 5.11.2003 and therefore, this petition could not be entertained. 4. The law enjoins that the accused should be present during the course of the trial to safeguard his interest than to accuse him. Nevertheless, in a case where the accused himself applies to the court to be exempted from personal appearance, normally the court should grant exemption unless it is of opinion that in the interest of justice, it is necessary that the accused should be present throughout the course of trial or unless there are some other good reasons for directing the presence of accused throughout the course of the trial. 5. In case if the accused has been allowed to appear by his pleader and failed to put in appearance in spite of the direction from the learned Magistrate, the course open to the learned Magistrate is to issue summons or warrant according to the provisions of the Code. In this case, the learned Magistrate has refused to exercise his discretion to dispense with the personal appearance of the Petitioners, without assigning any reason. 6. The 1st Petitioner has submitted before the learned Magistrate that he was suffering from heart ailment and the 2nd Petitioner was looking after the whole business, which requires frequent travel, but the same has not been considered by the learned Magistrate and merely dismissed the petition on the ground that the earlier petition has been dismissed. The discretion of the Magistrate to dispense with the personal appearance of the accused has to be exercised judicially after recording reasons. The order passed by the learned Magistrate without considering the reasons assigned by the Petitioners is not sustainable and therefore, the same is set aside. However, it is made clear that the learned Magistrate may direct the personal appearance of the accused at any stage of the proceedings, if their presence is necessary. https://hcservices.ecourts.gov.in/hcservices/ 7. With the above directions, this Criminal Original Petition is disposed of. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar Srcm To: 1.The learned Judicial Magistrate III, Coimbatore 2.The Public Prosecutor, High Court, Madras LA(CO) km/27.7. Crl.OP.No.26830/2006 https://hcservices.ecourts.gov.in/hcservices/